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5. During the investigation, statements of the witnesses were recorded, clothes of accused Nos. 1 to 3 were seized and spot panchanama was drawn. From the spot of the incident, a can of kerosene, half burnt saree having smell of kerosene, match box having smell of kerosene, half burnt match stick, earth having kerosene smell were seized and panchama Exhibit 41 was drawn. All these articles were referred to Chemical Analyser for analysis vide letter Exhibit 47. Statements of the witnesses were recorded and after disclosure of the offence, charge-sheet was submitted against the appellant and acquitted the accused Nos. 1 and 3 before the learned Judicial Magistrate First Class Tuljapur, who committed the same to the Court of Session in usual manner.

In the case at hand, nothing is there on record to show that thumb of the deceased had been completely burnt. Thus, from the testimony of PW 1 and PW 2, it is manifest that deceased was in a sound state of mind while giving dying declaration.

Therefore, dying declaration is confdence inspiring.

16. The dying declaration states that the appellant said to her as to why she was not allowing him to share bed and poured kerosene on her and set her on fre. It is pertinent to note that the deceased did not implicate accused No. 1 or 3. She has specifcally stated that appellant poured kerosene and set her on fre. PW 3 has stated in the cross examination that accused No. 1 is a driver and he used to be away from home on account of his job. Taking undue advantage of this, the appellant used to demand sexual favour from the deceased. It is also pertinent to note that accused No. 3 is suffering from leprosy and naturally, she must not be in a position to meet the demand of appellant because of her ailment. The argument that a person of the age of appellant will not indulge in such activities holds no ground. Instances are not few wherein a person of his age has indulged in such activities and in some cases, elderly persons have also been accused of rape. Therefore, age is not a relevant factor to be considered in such cases. It is worth noting that the deceased, in the dying declaration did not implicate either accused or accused No. 3. Even if it is assumed for the sake of argument that appellant has been falsely implicated, in that scenario, she would have implicated her husband and mother-in-law also. This conduct of the deceased in implicating only the appellant makes the dying declaration even more confdence inspiring and reliable.

17. Argument that the deceased wanted to live separately from accused as accused No. 3 was suffering from leprosy has no substance because none of the witnesses has admitted that she wanted to live separately.

18. It is true that the Medical Offcer Dr. Pathan has admitted in the cross-examination that the deceased while recording history has stated that she suffered burn injuries in an accident. Evidence on record clearly indicates that the deceased could not have made such a declaration. It is pertinent to note that the Chemical Analyser report Exhibit 60, records that the clothes of the deceased were having residues of kerosene. In case of accidental fre, possibility of detection of kerosene does not exist. Moreover, it is not explained as to how fre broke out accidentally. It is most unlikely that in case of accidental fre, a person will have 95% burn injuries. Therefore, the possibility of accidental fre is completely ruled out.

19. The deceased had given dying declaration to PW 3 Dadamiya and PW 4 Rashidabee, who are brother and mother of the deceased respectively. She had given oral dying declaration to them which is in consonance with the dying declaration Exhibit

30. They have stated that the deceased told them that appellant poured kerosene on her and set her on fre. Spot panchanama also shows that there was half burnt piece of saree of green colour and a match box and half burnt match stick having kerosene smell and they were seized. Chemical Analyser Report Exhibit 60 also shows that the earth collected from the spot had kerosene residues. This clearly indicates that there was use of kerosene. If kerosene had been used for cooking purpose, there was no reason for the fall of kerosene on the ground. Having regard to this, the possibility of accidental burns is ruled out completely.