ROHIT B. DEO, J.

The appellants accused are taking exception to the judgment and order dated 13-9-2006 rendered in Sessions Trial 19 of 2000 by the Additional Sessions Judge, Pusad, by and under which, the accused are convicted for offence punishable under section 498-A read with section 34 of the Indian Penal Code (“IPC” for short) and are sentenced to suffer rigorous imprisonment for three years and to payment of fine of Rs. 500/- and are further convicted for offence punishable under section 304-B read with section 34 of Indian Penal Code and sentenced to suffer imprisonment for life and to payment of fine of Rs. 1000/-. The accused are acquitted of offence punishable under section 302 read with section 34 of the Indian Penal Code.

2. Heard Shri K.S. Narwade, learned counsel for the accused and Smt. S.Z. Haidar, learned Additional Public Prosecutor for the respondent State.

3. Deceased Pushpa and accused 1 Anil Datkar entered into matrimonial alliance on 9-5-1999. Pushpa suffered burn injuries on 23-10-1999 and expired on 1-11-1999 while undergoing treatment at the Yavatmal Government Hospital.

4. Pushpa’s father PW 1 Gangadhar Gore lodged report Exh. 59 at Police Station Mahagaon on 5-11-1999 alleging that Pushpa was illtreated by the accused to coerce her to fulfill dowry demand and on the fateful day accused 3 Parbatabai the mother in law of Pushpa poured kerosene on Pushpa’s person and accused 4 Bali Datkar – the sister in law of Pushpa pushed her on the hearth with the result Pushpa sustained severe burn injuries leading to her death on 1-11-1999. PW 1 alleged in the said report that while undergoing treatment Pushpa disclosed to one Digambar and his wife Indirabai Dongaonkar (PW 2) the complicity of accused 3 Parbatabai and accused 4 Bali and a similar disclosure was made by Pushpa to PW 1 on 23-10-1999. Initially an accidental death inquiry was registered under section 174 of the Code of Criminal Procedure, 1974 (“Code” for short) and on the basis of the report Exh. 59, Mahagaon Police registered offence punishable under sections 498-A, 304-B and 302 read with section 34 of the Indian Penal Code and sections 3 and 4 Dowry Prohibition Act against the accused.

5. Upon culmination of investigation, Final Report under section 173 of the Code was submitted in the Court of Judicial Magistrate First Class, Mahagaon, who committed the proceedings to the Sessions Court. The learned Sessions Judge framed charge (Exh. 38) for offence punishable under section 498-A, 304-B and 302 read with section 34 of the Indian Penal Code. The accused abjured guilt and claimed to be tried in accordance with law. The defence, as is discernible from the statements of the accused recorded under section 313 of the Code, is of total denial. However, the trend and tenor of the cross-examination reveal that the further defence is that Pushpa suffered accidental burn injuries.

6. The prosecution examined father of the prosecutrix Gangadhar Gore (PW 1), a neighbour and family friend Indirabai Dongaonkar (PW 2) and Investigating Officer (PW 3) Nivrutti Dambalkar to substantiate the charge. The learned Sessions Judge, was pleased to record a finding that the death was not accidental. The learned Sessions Judge relied on the oral dying declarations in the nature of disclosures made by Pushpa to PW 1 Gangadhar and PW 2 Indirabai and having done so, inexplicably recorded an incongruent finding that homicidal death is not proved. Irrefutably, as is admitted by the Investigating Officer Shri Nivrutti Dambalkar, a written dying declaration was recorded in which Pushpa absolved the accused of any complicity and stated that she suffered accidental burns while boiling water. The written dying declaration was not produced alongwith the charge-sheet. The learned Sessions Judge has brushed under the carpet the written dying declaration on the premise that the written dying declaration is not true and voluntary statement of Pushpa.

7. Section 304-B of the Indian