Ramesh Natthuji Wasnik and Another vs State of Maharashtra

P.D. Kode, J.—The order of conviction for commission of offence u/s 302 r/w 34 of IPC and sentence of life imprisonment with a fine of Rs. 500/- and in default R.I. For 1 month imposed upon each of the appellant by learned Sessions Judge, Amravati in Sessions Trial No. 41/2000 is subject matter of the present appeal. Each of the appellant along with absconding accused Naresh/ Narendra at said trial were charged and tried for committing murder of Sau. Indira, wife of said absconding accused Naresh/ Narendra in furtherance of their common intention, by pouring kerosene on her person in her house at about 5.00 pm on 13.11.1999 and setting her on fire and thereby causing her burn injuries resulting in her death on 25.11.1999 at Mayo Hospital, Nagpur.

The facts, in brief, leading to the said prosecution and conviction are as under:

Indira, after demise of her husband Manohar in an accident, had remarried with his brother i.e. absconding accused Naresh. About 1 1/2 year prior to the day of incident in question, as asked by one Sudhakar- friend of Naresh/Narendra, an amount of Rs. 5.000/- was brought by Naresh/Narendra and Indira from appellant No. 1 for cultivation. Sudhakar having not returned the amount, appellant No. 1 was demanding the same from Naresh/ Narendra and on the count of non payment of same there were quarrels in between them.

It is main prosecution case that on 13.11.1999 appellant No. 1, his wife appellant no. 2 alongwith Sudhakar had been to house of Indira at village Amner and had picked up quarrel on the count of non payment of said amount. Both the appellants had beaten Indira with kicks and blows. Ultimately, appellant No. 2 from the bottle at the said place had poured kerosene on person of Indira and appellant No. I had set her on fire and both of them had ran away. Her husband - absconding accused Naresh'' Narendra then out of the house came in and had tried to extinguish the fire and in the process had received bum injuries to hand. He along with one Vasant Borkar had taken her to Mayo Hospital at Nagpur. PW7 Ramakant Tripathi on duty at the said Hospital after giving requisition Exh. 46 to the Medical Officer and obtaining his endorsement thereon of Indira being fit to give a statement had recorded her first dying declaration Exh. 47. On the basis of the said statement on 14.11.1999. Crime No. 0/99 was registered at Tahsil Police Station.

PW6 Dinkar Kindhe, Executive Magistrate and Naib Tahsildar at 13.00 hours on 14.11.1999 having received requisition Exh. 41 from Tahsil Police Station for recording dying declaration of Indira and absconding accused Naresh/Narendra said to be admitted at Ward No. 3 at Mayo Hospital. Nagpur had been to the said place and given requisition Exh. 43 at about 1.45 pm for examining the patients and informing whether Indira was in a position to give a declaration and doctor having endorsed thereon of patient being in fit for the statement and had recorded second dying declaration Exh. 44 of Indira at the said hospital. However, PW6 could not record statement of absconding accused as he was told that said accused was not admitted at the said hospital and accordingly had recorded endorsement upon the requisition letter Exh. 41 received.

PW3 Ashok Ingle, constable from Tahsil Police Station had brought FIR No. 00/99, dying declaration to Warud Police Station on 15.11.1999. On the basis of the same, PW4 Govind Wankhede on 15.11.1999 at 15.05 hours had registered Crime No. 296/1999 for offence u/s 307 r/w 34 of IPC against the appellants and Naresh at the said Police Station.

PW8 PSI Papalal Devikar on 15.11.1999 received case diary of the said Crime No. 296/ 1999 for investigation. On the next day, he went to the place of spot and drew spot panchanama Exh. 22 and also seized eight articles namely quilt, partly burnt saree, white shirt with sleeves burnt, blouse, plastic cane of kerosene containing two litres kerosene, a lamp prepared of the bottle containing 10 ml kerosene, match stick and burnt pieces of clothes with flesh sticked to them from the spot under seizure memo Exh.23 in presence of panchas PW1 Shende and one other. PW8 had been to the hospital and recorded statement of victim Indira--third dying declaration Exh.52. After Indira succumbing to the bum injuries sustained, on 25.11.1999, the offence of murder was added to the said crime. Her body was also sent for post mortem, which was carried out at Mayo Hospital by PW5 Dr. Shailendra Dhavane and had prepared postmortem notes Exh.39 mentioning cause of death as pyarmia due to burn injuries. The inquest upon the corpse was thereafter, conducted on 28.11.1999 by PW7 in presence of panch PW2 Kewalram and one other PW8 had forwarded the muddemal articles to Chemical Analyser and C.A. Report Exh.53 about same was received later on. PW8, at the conclusion of investigation, submitted the charge sheet against the appellants and absconding accused Naresh/ Narendra in the Court of JMFC. Warud. The case registered thereon was committed to the Court of Session.

Both the accused had pleaded not guilty to the said charge Exh.15 framed against them at trial by the learned Sessions Judge on 8.6.2004. The prosecution at the trial had examined above referred eight witnesses and so also adduced the documentary evidence collected during investigation. Out of the said eight witnesses examined at trial, prosecution was required to cross examine PW1, having not supported the prosecution, by obtaining necessary leave from the court. The rest of seven prosecution witnesses had given evidence in consonance with part played by them in said episode as described hereinabove.

The defence of the appellants was that of total denial and of false implication During the answers given in their examination effected u/s 313 of Cr. P.C. the appellants with regard to circumstance put them, either claimed of themselves being not aware of same or the same being false. Both of them claimed that Sudhakar brother of appellant No. 2 had been to their house along with absconding accused and asked appellant no. 1 to give him Rs. 5,000 as he was then in need of the same and accordingly they had paid such amount. The same was not returned by absconding accused for two years. Appellant No. 2 had been to her brother Sudhakar for the same. Sudhakar had asked her not being to absconding accused for demanding the said amount as he was of criminal nature. They had asked Sudhakar to go to absconding accused for bringing the money. Both of them claimed of being at Kamathi from 11.11.1999 to 16.11.1999 for the marriage scheduled on 14.11.1999 and having returned on 16.11.1999 at 6.00 pm. And being not aware as to what had happened at Amner Police had been to their house and arrested them. Narendra had falsely involved them in the incident occurred. Appellant No. 2 also produced wedding card of her brother in-law and six photographs taken on 13.11.1999 and claimed that herself and appellant No. 1 were seen in the photographs. It is significant to note that appellants did not examine any witness in support of their defence of being at Kamathi and all the said photographs were taken on 13.11.1999.

Thus prosecution case mainly rested upon the evidence pertaining to three dying declarations placed on the record and the corroborative evidence regarding the same and/or the matters probabilising the same i.e. of panch witnesses PW1 and 2; Dr. PW5 and that of investigating officer PW7 and PW8 and the documentary evidence corroborating the oral testimonies of said witnesses regarding sending/ requisitioning them for recording dying declaration, endorsement made/certificate given by them and/ or regarding other material collected during the investigation. The trial court after appreciation of the evidence discarded alleged infirmities/ discrepancies pointed out from the same and so also the defence of the appellants of themselves being implicated at the behest of absconding accused Naresh/Narendra and so also alternate defence of themselves being at kamathi. The trial Court accepted the dying declarations relied by the prosecution and particularly dying declaration Exh. 44 recorded by PW6 Naib Tahsildar. The trial Court found of there being consistency in the same regarding role played by the appellants. Thus, the trial Court found the appellants guilty and convicted and sentenced them as narrated hereinabove.

Mr. V.M. Deshpande, learned counsel for the appellants, urged to allow the appeal and set aside the order of conviction and sentence passed by the trial court:

(a) Manifestly erred in coming to the conclusion of guilt of the appellants for the offence of murder being established on the basis of the dying declarations relied as the same suffers from serious infirmities and/or cannot be regarded as true, reliable voluntary dying declarations made by the deceased,

(b) While appreciating the purported dying declarations clearly overlooked the circumstance of prosecution having failed to establish precise place at which the incident in question had occurred.

(c) Failed to appreciate that in spite of the incident having taken place in the house surrounded by many houses, the prosecution has failed to examine any independent witness from said locality for supporting the prosecution case of incident having taken place as alleged by the prosecution and has chosen to rest the prosecution only upon weak type evidence of the dying declarations allegedly made by the deceased,

(d) Failed to appreciate that absconding accused Naresh/ Narendra had taken the deceased to the Hospital and the prosecution record itself reveals that he had also sustained the injuries and recording of his dying declaration was also sought but same was never recorded.

(e) Failed to take into account the complaint made by father of the deceased at Exh. 54 and 55 that Naresh/Narendra absconding accused was the person behind the incident and further failed to appreciate the defence submission that the purported dying declarations were outcome of tutoring made by Naresh to the deceased,

(f) Failed to appreciate that none of the dying declarations relied by the prosecution was bearing any medical certificate regarding condition of the deceased and on the said count alone ought to have rejected all the dying declarations.

(g) Erred in accepting the dying declaration Exh.47 and Exh.44 respectively only on the basis of the evidence of PW7 having obtained endorsement of Doctor upon the requisition letter Exh.46 of deceased being ''fit to give a statement'' prior to recording Exh.47 and that of PW6 of having obtained such endorsement from doctor upon requisition letter Exh.43 prior to recording Exh.44.

(h) In absence of any evidence of Doctor being led by the prosecution ought to have come to the conclusion of the prosecution having not established of the deceased being in fit condition to make a dying declaration ought to have discarded the said dying declarations and so also dying declaration Exh. 52 recorded by PW8 for which also no such evidence of the deceased being in fit condition to make statement/dying declarations, was adduced.

(i) Erred in relying dying declarations as trustworthy dying declaration made by the deceased while being conscious and fit condition to make a statement,

(j) Erred in not coming to conclusion, that none of dying declarations inspire confidence and hence deserve to be discarded and consequently there being no other evidence to link the appellants with the offence, they deserves to be acquitted.

The learned counsel for the appellants placed reliance upon the decision in the case of Laxman Vs. State of Maharashtra, in support of the proposition canvassed that in the instant case the prosecution had not led cogent evidence to come to the conclusion that deceased was in a position to make a dying declaration and as such purported dying declaration relied deserves to be discarded.

Mr. T.A. Mirza, learned APP, supported the impugned judgment and order and submitted that the evidence on record clearly makes out a case of accused having committed murder of the deceased. He urged that the evidence of PW7, PW6 and PW8 inspires confidence regarding dying declaration respectively at Exh. 47, Exh.44 and Exh. 52 recorded by them on different dates as claimed. It was urged that the evidence adduced clearly establishes dying declaration Exh. 44 which is in question and answer forms being true, voluntary dying declarations made by the deceased and recorded by PW6. It was urged that even the case regarding dying declaration Exh 47 and Exh 42 was not different. It was urged that hardly any matters have cropped up for not accepting the said dying declarations and the acts in question being committed by the appellants. It was urged that there exists absolutely consistency in the matters spelt from said dying declarations. It was urged that such reliable piece of evidence cannot be discarded on the trivial matters as pointed out by the defence. It was urged that the matters from the dying declarations are found duly corroborated from the situation existed at the scene of offence as established by prosecution through the evidence of investigating officer regarding the spot panchanama and matters from C.A. report. It was urged that minor discrepancy in mentioning house number in spot panchanama cannot lead to inferences as suggested on behalf of appellants. He urged that acceptance of the said dying declaration clearly establishes of the appellant No. 2 having poured kerosene and appellant No. 1 having set deceased on fire. It was urged that merely because the prosecution was unable to bring absconding accused before the court or that he had taken deceased to the Hospital or he is said to have sustained some injuries would not be a factors for not accepting the prosecution case against the present appellants, whose guilt is duly established by the prosecution evidence. It was thus urged that the appellants has been rightly held guilty and convicted and sentenced by the trial court.

The learned APP on his part has placed reliance upon the decisions in the case of:

(i) Sohan Lal alias Sohan Singh and others v. State of Punjab AIR 200 SC 4466; and

(ii) Sher Singh and Another Vs. State of Punjab,

We have given thoughtful consideration to the submissions advanced by both the parties and carefully perused the record and the decisions pointed.

Apart from the learned counsel for the appellants having not disputed the deceased having died due to bum injuries sustained in the house in the evening the said facet has been otherwise established by overwhelming evidence on record in a shape of the evidence of PW5 who had conducted autopsy on her body on 28.11.1999 after she had succumbed to death on 25.11.1999 and given cause as death due to pyremia due to burns and duly supported by post-mortem notes Exh.39 of the same prepared by him, the relevant part of the evidence of PW7 who had recorded dying declaration Exh.47 of deceased soon after her admission at Mayo Hospital, Nagpur and so also similar type of the evidence of PW6 Naib Tahsildar and investigating officer PW8 Devikar, who had also recorded the dying declarations of the deceased Exh.44 and 52 respectively on 14.11.1999 and 16.11.1999 and so also of the evidence of inquest panch Kewalram and PW3. Without unnecessarily discussing the evidence of each of the said witnesses and leaving aside the aspects from the same tried to be assailed by the defence, it can be safely said that the said evidence considered in proper perspective in terms establishes deceased Indira having received bum injuries on 13.11.1999 and as a consequent to the same, having died on 25.11.1999.

Now considering the challenge on part of appellants at the trial, it can be safely said that it is not even their case that Indira had sustained said burn injuries either accidentally or due to any attempt on her part to commit the suicide. Leaving aside the precise place at which she had sustained the said injures whether in the house no. 81 or house no. 80 about which the controversy is tried to be made, hardly any dispute is made on part of defence of Indira having sustained the burn injuries in her house. Now leaving aside the disputed aspect about precisely the house in which she had sustained the said injuries, considering the other evidence adduced by the prosecution i.e. spot panchanama Exh.22, the evidence of PW8, the matters spelt from C.A. report Exh.53 regarding the articles seized from the spot and matters from the same being not at all indicative of Indira having sustained the said burn injuries in any other manner other than in the homicidal nature. Such a conclusion is apparent as hardly any evidence has surfaced on the record indicating that Indira had sustained the burn injuries either accidentally or in an attempt to burnt herself.

In the light of the discussion made hereinabove, it will be necessary to appreciate prosecution evidence to ascertain whether the appellants were authors of the said injuries sustained by her and for the said purpose it will be necessary to examine findings arrived by the trial court on the basis of the evidence which is mainly comprised of the dying declarations made by her and corroborative evidence in support of the same.

In the said process, firstly taking up the second dying declaration which is recorded by PW6 Naib Tahsildar, the material part of his evidence reveals that after receipt of requisition Exh.41 from police for recording the dying declaration on 14.11.1999 at about 1.00 in the noon, he had been to Ward No. 3 of Mayo Hospital, Nagpur and had given the requisition letter Exh.43 to the Doctor and requested him to examine the patient and inform whether she was in a position to give declaration and doctor had made endorsement upon the said letter Exh.43 showing her fitness for statement. Needless to add that his said evidence is found well corroborated by the matters stated in the said letter Exh.41 and 43. Apart from the same, nothing has surfaced upon the record rendering the said part of his evidence either unbelievable or unacceptable.

The further part of the evidence of PW6 reveals that thereafter he had recorded the statement of Indira in question and answer form. He deposed of having asked her as to how the incident had taken place and she informed that on 13.11.1999 at about 5.00 p.m. Alka Wasnik, Sudhakar Walke, brother of Alka and Ramesh Wasnik had been to her house. Alka Wasnik and her husband Ramesh picked up quarrel on the ground of her husband having taken money and she told that her husband had not taken it but her brother has taken it. His evidence shows that victim further stated that she (Alka) started beating her and then poured kerosene from a bottle and then her husband set fire with the match box, because of which, she sustained injuries. PW6 further deposed that Alka Wasnik and Ramesh Wasnik (appellant Nos. 1 and 2) both set her on fire and she had not on her accord nor her husband had set her on fire. PW6 further deposed that 25 minutes were required for recording her statement and she was in a position to talk while her statement was read over to her and her thumb impression was taken on it and he also signed upon the same and Exh.44 being the said statement.

Though PW6 was thoroughly cross-examined on behalf of the appellants, hardly any material has surfaced on the record during the cross-examination for not accepting his said evidence. PW6 was candid enough to admit that he had got the information about the incident from the person concerned but the same was the general information. He categorically stated that it was wrong to say police had informed him how Indira sustained the burn injuries. He also stated that it was wrong to say that generally he was taking endorsement of the Doctor regarding the condition of the patient on the same form, which was used for recording the statement. He further deposed that it was wrong to say that they take endorsement of doctor in the midst of recording the statement if required. He admitted of having not asked her educational qualification and having not mentioned any reason for not taking her signature on the statement. He denied that the thumb impression on Exh.44 was not of the deceased. He also denied of having recorded the statement as per the suggestion of the husband of the deceased and the police. He candidly admitted of having not taken the endorsement of doctor that dying declaration was recorded in his presence, He admitted that Exh.43 i.e. requisition letter bearing endorsement of the doctor was produced by him for first time in the court. But he denied that the same was prepared subsequently. Thus, considering the evidence of PW6 as a whole, it is difficult to accept that the same does not inspire confidence for the matters deposed and/ or by the same prosecution has not established Ex.44 being a true, voluntary and reliable dying declaration of the deceased and/or herself was not in a position to make a statement.

It is indeed true that, as pointed out by the learned counsel for the appellants, dying declaration Exh.44 is not bearing endorsement of the doctor upon it. It is also true that the prosecution has not examined the doctor, who had given the endorsement for the purposes of recording Exh.44 and so also for dying declaration Exh.47 which is also not containing endorsement upon it. On the said basis, the learned counsel for the appellants tried to canvass that hardly there exists any cogent evidence on the record indicating that the deceased was in fit condition to make a statement. By laying stress upon the fact of PW6 having produced the requisition letter containing the endorsement of doctor at the time of trial, it was tried to canvass that such a letter or endorsement can be easily prepared later on. Though, the said submission apparently appears to be attractive, hardly any-cogent material has been brought on the record or exists on the record for accepting such a submission. Apart from the same, considering the evidence of PW6 as whole, the same does not reveal any circumstance for accepting such a claim canvassed. Having regard too the same and having regard to the explanation given at a trial that the prosecution could not examine Dr. Chaudhari as his whereabouts were not known and as such he could not be traced out and identity of the doctor who had made endorsement Exh.46 could not be ascertained, it is difficult to give any credence to the theory canvassed. The same is the case regarding the criticism advanced of the endorsement being not obtained upon the dying declaration itself. In our opinion, without there being any foundation for such a criticism advanced, merely upon the said circumstances pointed, the conclusion tried to be canvassed on behalf of the appellants, cannot be accepted. Needless to add that PW6 and PW7, who had recorded respective dying declarations, had not been either cross examined upon the relevant aspect nor any material supporting such submission canvassed, has been found elicited during the cross examination.

In the same context, it can be further added that reliability of the dying declaration and/or fitness of a person to make a statement being required to be considered in the light of all the evidence adduced on the record as explained by Hon''ble Apex Court in the judgment in the case of Laxman [2002 ALL MR (Crl) 2259 (S.C.)] (supra) pointed out by the learned counsel for the appellants makes itself difficult to accept the proposition canvassed. It is indeed true that a person being conscious and a person being fit to make a coherent statement, are altogether different things. It is also true that in the instant case the prosecution has not adduced the evidence of doctor. However, considering the evidence of PW6 as a whole and particularly the manner in which he had recorded the dying declaration of deceased so also his experience for recording dying declaration surfaced on the record makes it difficult to accept the submission that the deceased was not in a fit condition to make a statement. Such a conclusion is obvious as the evidence of PW6 reveals that he had asked questions to the deceased and she had answered the same and he had made the record of the same. Now considering the dying declaration Exh.44 and particularly questions asked and answers given in term reveals that at the relevant time the deceased was in a position to understand the question asked to her and to give a rational replies to the same. Thus, the positive claim staked by PW6 of deceased having made the dying declaration to him has remained unsheltered on the record and hence apparently there is no reason for discarding dying declaration Exh.44 out of consideration.

Now considering the first dying declaration Exh.47 and particularly the evidence regarding the same of PW7, who had recorded the same, no different phenomena has been found. Without unnecessarily reciting the evidence of PW7 in respect of recording the said dying declaration, it can be safely said that his evidence, as narrated earlier while narrating the prosecution case, unfolds the manner in which he had recorded the same. Considering his said evidence in the light of answers given by him during the cross-examination does not reveal any other than husband of deceased/absconding accused Naresh also being present in the Hospital. The evidence of PW7 reveals of having denied the suggestion of having received information recorded in Exh.47 from said Naresh or the said dying declaration and requisition letter Exh.46 also being prepared at his behest. PW7 in candid terms admitted of Exh.47 upon it not containing any endorsement of the same being recorded in his presence and/or the timings at which he has commenced and completed recording of the same. He also admitted that deceased was knowing reading and writing and serving in Anganwadi. He denied that Exh.47 was not bearing her thumb impression. Thus, considering the evidence of PW7 as a whole and in light of discussion made regarding the evidence of PW6 of dying declaration not containing upon it endorsement upon requisition letter Exh.46 being not examined, for the same reasons the dying declaration recorded by PW7 also will not be liable to be discarded. Additionally, it can be said that, as observed earlier, reliability of dying declaration is to be determined, after taking into consideration the evidence pertaining to recording of the same in light of facts and circumstances attached to the same. Hence, as observed earlier, merely because the dying declaration Exh.47 is not containing the endorsement of the doctor thereon and/or the same not containing the time of recording or the doctor making the endorsement about the fitness being not examined, by themselves cannot be construed as factors sufficient enough for discarding the said dying declaration as tried to be canvassed on behalf of the appellants, as hardly anything has surfaced on the record for dislodging positive claim staked by PW7 of deceased having made dying declaration and himself having recorded the same. Similarly considering the matters stated in the said dying declaration and certain details therein, it is difficult to accept the theory canvassed on behalf of the appellants of the same being prepared by PW7 from the information received from Naresh @ Narendra or at his behest. Needless to add that defence had not been able to bring anything on the record in support of the said theory canvassed.

Now considering the third dying declaration recorded by PW8, the case is also not found to be different. Without unnecessarily reciting the evidence regarding the recording of the same by PW8, it can be safely said that considering the evidence of PW8 as whole about relevant aspect, the same also inspires confidence for accepting his claim of deceased having made dying declaration Exh.52 to him and himself having recorded the same. Such a conclusion for the said dying declaration and so also for earlier two dying declarations also emerges from the fact of the incident having occurred on 13.11.1999, the victim having suffered 61% injuries and there being only 6% injuries on face and neck and the deceased having remained alive upto 25.11.1999 and so also the details found in the said dying declarations and particularly in the last one recorded by PW8 on 15.11.1999. Needless to add all the said factors, apart from the positive claim staked by PW6, PW7 and PW8, additionally militates against the submission canvassed of victim/deceased being not in a position to make a statement after her admission to the hospital. At the cost of repetition, it can be added that except giving suggestion of such a nature to the said witnesses, hardly any material was brought on the record during the cross-examination or pointed out from the record.

In addition to the aforesaid after careful perusal of the evidence of PW6, PW7 and PW8, we are satisfied that by their evidence, the prosecution has duly established of Exh.44, Exh.47 and Exh.52 being dying declarations made by the deceased to them. Needless to add that close scrutiny of the evidence of the said three witnesses either independently or in light of the evidence of each other, do not reveal any circumstance for doubting the claim staked by them and/or coming to the conclusion of deceased being not in a position to make a statement to them having surfaced on the record. Furthermore, now even considering the matters stated in the said dying declarations and consonance found in the same about the account of an incident would be an additional factor for accepting their evidence. The same is the case about the corroboration to the same being received from the situation prevailing at the spot established by the prosecution by adducing the evidence of PW8 and particularly about the spot panchanama Exh.22 drawn by him.

Mr. V.M. Deshpande, learned counsel for the appellants, by pointing out trivial variances within the matters in the said dying declarations such as Exh.52 also attributing Sudhakar giving dirty and filthy abuses to the victim which is found absent in other two dying declarations; in Exh.47 deceased claiming of herself being beaten by appellant Nos. 1 and 2 while in Exh.44 claiming appellant No. 2 having beaten her, and thereafter having poured kerosene as stated in Exh.44 and the variance regarding the precise juncture at which her husband had been in the house; tried to canvass of there being material variance in the tale narrated by the deceased while making each of the said dying declarations.

We find it extremely difficult to accept the said submission, firstly because each of the said dying declaration is recorded at different point of time, to person and place i.e. first dying declaration on 13.11.1999 to PW7 in the Hospital, in the process of recording statement of deceased, while second dying declaration Exh.44 on the next day precisely for recording dying declaration by asking her question and recording statement of deceased during the course of other investigation. Thus, taking into consideration the purposes for which the said dying declarations/statement were recording at different point of time, occurring of such a minor variance in the same cannot be said to be unnatural feature. Needless to add that first and second dying declarations containing more details and particularly third much more was obvious considering the different purposes for which the same were recorded. Having regard to the same and there being no material inter se conflict in the matter stated in the dying declaration and particularly the role played by each of the appellant in commission of an act which has ultimately resulted into the death of the deceased, such minor discrepancies pointed would be a factor guaranteeing the truth of the matter stated rather than creating any doubt about the same.

With regard to the submission canvassed by learned counsel for the appellants that inspite of house of Indira being situated in thickly populated locality as surfaced on the record and still prosecution had not bothered to record the statements of independent person from the said locality and/or to examine them and thereby having not unfolded true tale and deliberately chosen to rely upon weak/doubtful piece of evidence in shape of dying declaration, we find it difficult to accept the same as careful perusal of the evidence of investigating officer PW8 does not reveal that such an aspect has been spelt and /or brought on the record during the cross-examination. Thus in absence of any such evidence, no conclusion can be jumped of that statements of the persons from the said locality were not recorded during the course of the investigation merely on the basis of the persons from the said locality being not examined at trial. Similarly the prosecution being only bound to examine the witnesses necessary to unfold the prosecution tale and in the instant case the incident having occurred in the house and nothing having surfaced on the record of any other person was in the said house and/or had witnessed the incident, it is difficult to accept the relevant submission canvassed. The same is the case regarding the trial Court ignoring the complaint Exh.54 and 55 filed by the father of the deceased as none of the said complaints has been duly proved on the record. Needless to add that the same being the complaint lodged by father whose presence at the spot of incident being not at all spelt from the record, no fault can be found with the trial Court for ignoring the same which again apparently appears to have been lodged upon suspicion after about one month after occurrence of incident.

The learned counsel for the appellants, by laying finger upon the admission given by PW8 that as per the panchanama the articles were sized from house No. 80 while house No. 81 belongs to Gulabraoji Jevatkar and further laying fingers upon the admission given by hostile witness PW1 that Indira was tenant of Gulabraoji, has tried to urge that the same denotes that Indira was residing in house No. 81 and the police had seized the material from house No. 80 shows the prosecution having not precisely established the place at which incident had occurred. It is difficult to give any credence to the said submissions as the panchanama mentions the articles being seized from house No. 80 being not found supported by the same. Such a conclusion is inevitable as except the bare word of the investigating officer that house No. 81 belongs to Gulabrao Jevatkar hardly any evidence has surfaced on the record to such effect. Thus having regard to the nature of the evidence upon which the submission was based, it is difficult to accept that the prosecution evidence and dying declaration in term revealing that the incident had occurred in the house at which the deceased was residing can be discarded.

The same is the fate about the further submission canvassed that absconding accused Narendra @ Naresh was the main culprit and the appellants are made scapegoats at his behest by pointing out the circumstances of the prosecution also having charge sheeted husband of deceased and the said accused had absconded during the trial and the evidence also denotes that he was having some criminal records and that he was also taken to the hospital due to having sustained injuries.

In the same context and apart from ourselves being unable to find any fault with the reasonings given by the trial court for not giving any credence to the said circumstance, it can be further added that the reference to Exh.41 also reveals that PW6 could not record the statement because he was not found to be admitted in the said Hospital. Furthermore, hardly any evidence has surfaced on the record of said Naresh in reality having sustained any injury. Similarly incident having occurred in his house and in respect of his wife, merely because he had been to the Hospital cannot be said to be a circumstance supporting theory canvassed that everybody and particularly PW7 had acted on his behest. Even the said submission is found belied by the fact of himself being ultimately charge sheeted by the Police. Similarly considering settled legal position that mere abscondence by itself cannot be regarded as circumstance for inferring guilt of any absconding person merely because Naresh who was also charge-sheeted by the police having absconded cannot be said to be a circumstance absolving liability of the appellants for the acts committed by them which are duly established by the prosecution evidence. Thus none of the said factors can be said to be useful for any meaningful purpose for accepting the theory canvassed.

Now with regard to the decision relied by the learned counsel for the appellants, it is difficult to accept that the same also can be said to be of any useful assistance to the appellants for advancing their case as the said decision itself reveals that absence of doctor''s certification as to mental fitness of the declarant, cannot be regarded as sine qua non requirement for the credibility of the dying declaration or where the medical certificate indicated that the declarant was conscious, it would be a hypertechnical view to say that there was no certification as to fitness of state of mind of the declarant. Having regard to the ratio of the said decision which is delivered by five judges of the Hon''ble Apex Court, we do not deem it necessary to make any threadbare dilation upon the decisions of the Apex Court in the case of Sohan Lal alias Sohan Singh and others v. State of Punjab [2003 ALL MR (Cri) 2670 (S.C.)] and Sher Singh and another Vs. State of Punjab [2008 ALL MR (Cri) 833 (S.C.)](supra) pointed out by learned APP upon the aspect of the certification by doctor.

As a net result of the aforesaid discussion, we do not find any error committed by the trial court in accepting the prosecution evidence regarding the dying declarations placed upon the record and accepting the same being reliable, voluntary dying declarations made by the deceased and recorded by PW6. PW7 and so also by PW8. In view of the same, we do not find any substance in the submission canvassed of the error being committed by the trial court in coming to the conclusion about guilt of the appellants and convicting and sentencing each of them. Thus, we do not find any merit in the appeal and dismiss the same.