JUDGMENT - PALSHIKAR V.G., J.:—Being aggrieved by the judgment and order of conviction and sentence passed on 19-9-1998 by III Additional Sessions Judge, Nasik in Sess. Case No. 160/97 the appellants named above has preferred this appeal on the grounds mentioned in the memo of appeal and as verbally canvassed by the learned Advocate appearing on behalf of the appellants before us.

2.With the assistance of the learned Counsel for the defence and the prosecution we have scrutinized the record and reappreciated the evidence.

3.The prosecution story stated briefly is that there used to be frequent quarrels between the man and wife i.e. the accused and the deceased. On 15-9-1996 in the morning it is alleged that the accused poured kerosene on body of his wife Shalini and burnt her to death. On the report of such death being filed investigation was carried out. The accused and all his relations who are present appellants were arrested. Some of them were later on released on bail for committing assault on the victim under section 498-A and against accused No. 1 the husband for murdering the wife under section 302 of Indian Penal Code. The prosecution examined as many as 12 witnesses in support of its case that the accused was the person who committed murder and rest of the accused were persons who tortured her before she being murdered.

4.Shri Gupte, learned Counsel appearing on behalf of the appellants submitted that the dying declarations as recorded are unacceptable in law. No reliance should be placed on the same. He then specifically relying upon testimony of P.W. 1-Chandrakant Gangurde submitted that the dying declarations cannot be accepted for the intrinsic evidence which is within the deposition of P.W. 1-Chandrakant. He has pointed out to us discrepancies in the dying declaration and has therefore pleaded that in such circumstances conviction under section 302 or 498-A is unsustainable. It was also the contention of Shri Gupte that it is established principle of law under section 498-A of IPC that the torture, harassment or assault or ill treatment complained of as contemplated under section 498-A must be such as is administered immediately prior to the prosecution. In this case the prosecution has taken place in 1996, the incident which is on record occurred nine months prior to the commencement of the prosecution. According to him therefore it is strained evidence. There is no complaint ever made by the witness to the police though there is evidence of P.W. 6-Anandrao Patil father of the victim regarding ill treatment which was rather prior to the death or thereabout. According to the learned Counsel therefore the conviction of accused Nos. 2 to 11 is baseless, without any evidence and therefore unsustainable in law.

5.Learned Additional Public Prosecutor Mrs. Kejriwal opposing the submissions made by Shri Gupte pointed out that there is discrepancy in the two dying declarations as made. What has been trumpeted as discrepancy is a simple slip of memory and there is therefore no reason why conviction of accused No. 1 under section 302 of IPC be interfered with. However learned Public Prosecutor Mrs. Kejriwal was fair enough to submit that the evidence of ill treatment by accused Nos. 2 to 4 in relation to dowry demands is stale. She however led emphasis on the deposition of P.W. 6-Anandrao Patil father of the victim.

6.We have to consider these rival submissions in the light of the evidence which we have reappreciated.

7.P.W. 1-Chandrakant is neighbour of both i.e. accused and the victim. The accused and victim both were serving in the school. This witness was also serving in the school and they were all staying in the same vicinity. P.W. 1-Chandrakant describes the incident as it occurred. According to him in the morning of 15-9-1996 he was collecting water from the tap when he heard cries. He recognized the cries as of the victim Shalini and therefore started going towards the house of the accused and the victim. While so g

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