Bombay High Court
Gajanan S/O Rambhau Harne vs State Of Maharashtra on 22 December, 2025
2025:BHC-NAG:14759-DB
Criminal Apeal193.15.odt 1/47
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO. 193 OF 2015
1. Gajanan S/o Rambhau Harne,
Aged about 41 years, Occ - Agriculturist,
R/o.Village Lohara, Taluka,
Balapur, District Akola.
... APPLICANT
...VERSUS...
1. State of Maharashtra.
through P.S.O. of P.S. Ural,
Taluka Balapur, District Akola.
...NON-APPLICANTS
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Mr. S. V. Sirpurkar, Advocate for appellant
Mr. A. J. Gohokar, APP for non-applicant/State
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CORAM : URMILA JOSHI-PHALKE AND
NANDESH S. DESHPANDE, JJ.
RESERVED ON : 08rd DECEMBER, 2025.
PRONOUNCED ON : 22nd DECEMBER, 2025.
JUDGMENT (PER : URMILA JOSHI-PHALKE, J.)
1. This appeal is directed against the judgment and order of sentence passed by the Sessions Judge, Akola in Sessions Case No. 40/2012 dated 16.05.2015 by which the accused is convicted of the Criminal Apeal193.15.odt 2/47 offences punishable under Section 498A of IPC and sentenced to undergo Rigorous Imprisonment for two years and to pay fine of Rs. 100/- in default of payment of fine, to undergo further Rigorous Imprisonment for one month. The accused is further convicted under Section 302 of IPC and sentenced to undergo Rigorous Imprisonment for life and to pay a fine of Rs. 100/- and in default of payment of fine, to undergo further Rigorous Imprisonment for one month.
2. The accused is the husband of the deceased Rekha. Their marriage took place on 04.07.1995. From the said wedlock she begotten three daughters aged about 16, 10 and 4 years respectively. When the incident occurred on 25.03.2011 in the morning, Rekha was admitted in the hospital as she sustained 75% burn injuries. After her admission immediately her dying declaration was recorded at about 06.15 A.M. (Exh.64). During her dying declaration she stated that a glass bottle lamp filled with kerosene fallen on her and her clothes had caught fire and therefore she had sustained the burn injuries. She further stated that she had no complaint against any one. This fact was informed Criminal Apeal193.15.odt 3/47 to the brother of the deceased by name Nandkishor who along with mother of the deceased Sushilabai and other relatives rushed to the Hospital. As per the prosecution case they have enquired with the deceased how the incident occurred and deceased disclosed that on 25.03.2011 in the night there was quarrel between her and accused till mid-night. At mid-night he poured kerosene on her and set her on fire, before that he had bolted the door from inside. When she was burning, he opened the door. She was about to came out of the house but fell near the door then accused poured water on her person and extinguished the fire. She was shifted to the Government Hospital, Akola. Her second dying declaration was recorded on 31.03.2011 and third dying declaration was recorded on 01.04.2011 wherein she consistently stated that due to the quarrel between her and the accused who was suspecting her character and on that count he poured kerosene on her and set her on fire. On the basis of her dying declaration dated 31.03.2011, initially the offence was registered under Section 307 of IPC against the accused.
Criminal Apeal193.15.odt 4/47
3. After registration of the crime the wheels of the investigation started rotating. During investigation the investigating officer has visited the alleged spot of incident and drawn the spot Panchanama, by which he has seized the incriminating articles from the spot of incidence. During the treatment injured Rekha succumbed to the death on 05.04.2011, her dead body was forwarded to the post mortem examination. Her burnt clothes as well as lamp and other incriminating articles were seized. The statements of the various witnesses were recorded and after completion of the investigation the charge sheet was submitted against the accused.
4. As the offence registered under Section 302 of the IPC which is exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. The charge was framed against the accused. In support of the prosecution case the prosecution has examined in all ten witnesses as follows.
PW-1 Nandkishor Atmaram Phate Exh.26 Brother of the deceased
PW-2 Manohar Damodar Lad (PSI) Exh. 27 I. O.
PW-3 Sushilabai Atmaram Phate Exh. 38 Mother of the deceased
(Mother)
Criminal Apeal193.15.odt 5/47
PW-4 Mohan Sevakram Edhole (Relative) Exh. 40 Relative
PW-5 Balkrishna Namdeo Madankar Exh. 41 Executive Magistrate
PW-6 Dr. Swapnil Vitthalrao Thakre Exh. 45 Medical Officer
PW-7 Dnyaneshwar Pandurang Bakal Exh. 50 Panch on Spot
PW-8 Anil Naraynrao Kuralkar Exh. 52 API, I.O.
PW-9 Dr. Radha Bharat Jogi Exh.55 Medical Officer
PW-10 Dr. Vinod Dayashankar Sharma Exh. 58 Medical Officer
5. Besides the oral evidence the prosecution further placed reliance on requisition to C.A. Exh. 28 and 31, invoice challan Exh. 30, C.A. report Exh. 34 to 36, property search & seizure form Exh. 39, fitness certificate by the Medical Officer dated 01.04.2011 Exh. 59A, dying declaration dated 01.04.2011 Exh.42, endorsement by medical officer Exh. 59B, fitness certificate by the Medical Officer Exh. 46 dated 31.03.2011, dying declaration dated 31.03.2011 Exh. 53, endorsement by Medical Officer Exh. 47, intimation to police dated 25.03.2011 at 07.30 P.M. Exh. 49, spot panchanama Exh. 51, First Information Report Exh. 54, post mortem report Exh. 56, OPD information dated 25.03.2011 at about 03.55 A.M. Exh. 62, dying declaration dated 25.03.2011 Exh. 64, requisition to Executive Magistrate Exh. 63, letter dated 01.04.2011 to P.I. by Medical Officer Exh. 65.
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6. All the incriminating evidence is put to the accused in order to obtain his explanation. The defence of the accused is that death of the deceased is due to accidental burn injuries.
7. After appreciating the evidence on record and on going through the entire evidence, the learned Sessions Judge, Akola held the present accused guilty and convicted him as aforestated.
8. Being aggrieved and dissatisfied with the same, the present appeal is preferred by the accused on the ground that on the basis of inconsistent dying declarations the learned Sessions Judge, Akola convicted the accused. The physical and mental condition of the deceased to give statement is not at all established by the prosecution. The dying declarations dated 31.03.2011 and 01.04.2011 are prepared after thought. Thus, on the basis of inconsistent evidence the accused is convicted.
9. Heard learned counsel Mr. S. V. Sirpurkar for the accused who submitted his written submissions and submitted that to Criminal Apeal193.15.odt 7/47 establish the guilt of the accused the prosecution examined in all ten witnesses. It is pertinent to note that from the said wedlock the deceased has begotten three daughters. There was no previous complaint as far as the ill-treatment is concerned. The dying declaration on the basis of which the learned trial Court has convicted the accused, are inconsistent. The endorsement of the Medical Officer Exh. 48 shows that on 31.01.2011 the deceased was not able to give a statement, therefore, the evidence as to the second and third dying declaration is suspicious and doubtful. He further submitted that the law is settled as far as the inconsistent multiple dying declarations are concerned. Here the dying declarations which are recorded on 25.03.2011, 31.03.2011 and 01.04.2011 are inconsistent and cannot be the basis of conviction. He submitted that as far as the ill-treatment is concerned the evidence of the prosecution is vague in nature and not sufficient to convict the accused for all above these grounds. The judgment and order of sentence passed by the learned Sessions Judge, Akola deserves to be quashed and set aside.
Criminal Apeal193.15.odt 8/47
10. In support of the contention learned counsel for the accused placed reliance on State of Gujarat v. Jayrajbhai Punjabhai Varu reported in (2016) 14 SCC 151, Amol Singh v. State of Madhya Pradesh reported in (2008) 5 SCC 468 and Criminal Appeal No. 192 of 2010 Vimalbai W/o Vitthal Dhavne Vs. State of Maharashtra decided on 22.09.2025 by Bombay High Court.
11. Per contra, learned APP strongly opposed the said contention and submitted that law as to the dying declaration is well settled. For proving dying declaration it is not essential requirement of law that it should be consistent with all the particulars. The subsequent dying declaration recorded on 31.03.2011 and 01.04.2011 are consistent. There is no reason to doubt the said dying declaration. The oral dying declaration by the deceased to her mother is also natural one. The medical evidence shows that the deceased was in a fit condition to give statement and her fitness is also ascertained by the Executive Magistrate before recording dying declaration. The death of the deceased is occurred in a matrimonial home due to burn injuries. In view of that the appeal being devoid of merits liable to dismissed.
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12. After hearing both the sides and after giving thoughtful considerations to the submissions made by both the parties following points arise for our consideration:-
i. Whether the prosecution proves that the death of the deceased is homicidal one ? And ii. Whether the accused has poured the kerosene on person of the deceased and set her ablaze and caused her death?
13. To substantiate the contention that the deceased has sustained the burn injuries and succumbed to death due to the said burn injuries, the prosecution mainly placed reliance on the evidence of PW-6/Dr. Swapnil Vitthalrao Thakre examined vide exhibit 45. His evidence shows that injured Rekha was admitted in Government Hospital, Akola. He was working as a Medical Officer in Akola Burn Care Unit. She had sustained burn injuries. PW-9/Dr. Radha Bharat Jogi is the another Medical Officer who has conducted the postmortem on the dead body of the deceased. Her evidence shows that when she was attached to the General Hospital Criminal Apeal193.15.odt 10/ 47 Akola on 05.04.2011 she conducted the postmortem on dead body of deceased. There were superficial and deep burns on her body to the extent of 81%. All the burn injuries were ante mortem. Those injuries were sufficient in the ordinary course of nature to cause the death. Accordingly, she issued the P.M. notes Exh. 56. During her cross-examination she admitted that all these injuries are possible even when the patient receives the burn injuries by accident.
14. The another witness examined by the prosecution is Dr. Vinod Dayashankar Sharma examined vide Exh. 58. As per his evidence, in march 2011 he was working as a Resident Medical Officer in Akola Burn Care Unit. On 25.03.2011 his duty hours were from 11.00 am to 11.00 pm. On that day, one Rekha Gajanan Harne was admitted to the hospital by her husband. When he was on duty on 01.04.2011, Tahsildar approached to him and verified from him whether the deceased was conscious and in a position to make statement. He examined her and give a fitness certificate. His cross-examination shows that after her admission, they have given the intimation to the police regarding the admission of a patient Criminal Apeal193.15.odt 11/ 47 due to burn injuries. Thus, the evidence of PW6-Dr. Swapnil Vitthalrao Thakre, PW9-Dr. Radha Bharat Jogi and PW11- Dr. Vinod Dayashankar Sharma shows that the deceased was admitted in the hospital as she sustained the burn injuries. As per the evidence of PW9 burn injuries are to the extent of 81%. She has described the burn injuries as face 09%, right upper limbs 09%, left upper limbs 09%, chest and abdominal portion 18%, back 15%, right lower limbs 10%, left lower limbs 10% and perinum 01%. Thus PW9 devides the percentage of the burn injuries by rule 9. The inquest panchanama also shows that deceased has sustained the extensive burn injuries.
15. It is not disuted that death of the deceased is occurred due to the burn injuries sustained by her on 25.03.2011 and she died due to the burn injuries on 05.04.2011 during treatment. As per the prosecution case it was the present accused who ill-treated her and on the day of incident i.e in the intervening night of 24.03.2011 and 25.03.2011, there was a quarrel between both of them and he poured kerosene on her and set her on fire. Whereas it is the Criminal Apeal193.15.odt 12/ 47 contention of the defence that deceased has sustained the burn injuries due to the accident as the bottle lamp fell on her person and her clothes caught the fire and she sustained the burn injuries. To substantiate the allegation that deceased was ill-treated by the accused, the prosecution mainly placed reliance on the evidence of PW1 - Nandkishor Atmaram Phate examined vide Exh. 26, PW3- Sushilabai Atmaram Phate examined vide Exh. 38 and PW4- Mohan Sevakram Edhole examined vide Exh. 40. The evidence of PW1 shows that the deceased was his sister, married with the accused on 04.07.1995. She gave birth to three daughters. Till the birth of third daughter she was happy thereafter, she was ill-treated by the accused and she used to disclose about the same. His further evidence shows that on 25.03.2011 accused called him telephonically and disclosed that his sister Rekha had sustained burn injuries. He immediately informed to his parents and went to the Government Hospital, Akola. When he visited the Government Hospital, Akola, accused was sitting near to his sister. His parents asked the deceased how she sustained the burn injuries but she told that she would disclose later on, thereafter, they shifted her to the Criminal Apeal193.15.odt 13/ 47 private hospital on 30.03.2011. Her parents met Rekha, at the relevant time the accused was not present and on enquiry by his mother she disclosed that the accused have suspected her character, beaten her and thereafter poured kerosene on her and set her on fire, therefore, she sustained the burn injuries. He further deposed that the accused closed the door from inside at the time of incident, when she substantially burnt, he opened the door. She had tried to go out of the house but she fell at the door thereafter, the accused pulled her out of the house; poured water from a bucket and extinguished the fire.
16. His cross-examination shows that accused and deceased both of them were happily married but some times there was a harassment. It further shows that when he reached to the hospital on 25.03.2011 his sister was conscious and talking. When Rekha was admitted to a private hospital at that time his mother was accompanying her for some time. He further admits that, as Rekha has sustained injury and was admitted in the hospital another woman was allowed to stay with her for supervision. He specifically Criminal Apeal193.15.odt 14/ 47 stated that he has not witnessed that both hands of the accused were burnt. He further admits that he was not present when deceased has narrated the incident to his mother. His cross- examination further shows that from 25.03.2011, the accused was going out for taking lunch and attending the other work and they did not lodge any report against the accused from 25.3.2011 to 31.3.2011.
17. To corroborate the above version, PW3 Sushlabai mother of the deceased was also examined. She has corroborated the version of PW 1 on a material particulars that the marriage of the deceased with accused was performed. They were having three daughters. Deceased Rekha has sustained burn injuries and died due to burn injuries. When they went to the Government Hospital, she enquired with Rekha but Rekha told that she would not say right now. The accused was sitting there. Thereafter, Rekha was shifted to private hospital and she disclosed to her that it was accused who poured kerosene on her and set her ablaze. Her cross-examination shows that since the marriage accused was suspecting Rekha's character Criminal Apeal193.15.odt 15/ 47 and beating her. It further shows that, they did not lodge any report to the police about it. After marriage Rekha was visiting their house and they were also visiting the house of Rekha. She further admits that Rekha from time to time disclosing the information of ill- treatment till she died. The last rites were performed by the accused after Rekha's death. It was the accused who paid the expenses of private hospital. Both the hands of the accused were burnt. She further admits that when she went to the hospital, Rekha told her that she had received injuries because lamp had fallen on her.
18. Another witness PW4 who is the relative of the deceased examined vide Exh. 40. His evidence is similar to PW1 and PW3 as far as the disclosure by Rekha is concerned. He stated that on 30.03.2011 when he came to see Rekha, her parents were also present there. Rekha told them that on the night of 24th the accused had beaten her and poured kerosene on her and set her on fire, before shutting the door from inside. She further stated that the accused has extinguished the fire by pouring water on her.
Criminal Apeal193.15.odt 16/ 47 During his cross-examination he admitted that, he did not lodge report to the police though Rekha has disclosed that accused was suspecting her character and beating her.
19. On the basis of the above evidence, it was claimed by the prosecution that the evidence of PW1, PW3 and PW4 is consistent on material particulars. On appreciation of the evidence it reveals that as per the evidence of PW1, the ill-treatment started after birth of third daughter of the deceased. Whereas as per the evidence of PW3, accused started ill-treating deceased since her marriage. Whereas PW4 has not stated exact when he came to know about the ill-treatment at the hands of the accused.
20. Besides their evidence the prosecution placed reliance on the dying declarations. During her admission in the hospital three dying declarations were recorded. First dying declaration was recorded by the Executive Magistrate who was not examined by the prosecution, but the evidence of PW10- Dr. Vinod Dayashankar Sharma shows that on 25.03.2011 his duty hours were from 11.00 Criminal Apeal193.15.odt 17/ 47 am to 11.00 pm. On that day, one Rekha Gajanan Harne was admitted to their hospital. She was admitted by her husband. He narrated about the Exh. 49 which is the intimation given by the hospital to the police regarding the injuries sustained by her. His cross-examination shows that on 25.03.2011 when the deceased was conscious she was enquired, how she sustained the injuries and she disclosed that her Saree had fallen over the burning lamp and thereby her clothes had caught fire and she had received injuries. Accordingly, the said intimation was given to the police. It bears his signature and the contents are correct. His evidence further shows that the patient has sustained 75% burns. She cannot talk for long time, even if she is not under anesthesia. His cross-examination further shows that on the say of the relatives of the Rekha on 01.04.2011 arrangements were made to record her dying declaration. Thus, as per the evidence of PW10, her dying declaration was recorded and she has narrated that she has sustained burn injuries due to falling of the lamp on her saree. PW2
- Monohar Damodar Lad has also admitted that the first dying declaration of Rekha was recorded on 25.03.2011. He further Criminal Apeal193.15.odt 18/ 47 admits that, Rekha's daughter and the driver thakur did not disclose anything against the accused.
21. Admittedly, the second and third dying declarations are recorded on 31.03.2011 and 01.04.2011. To prove the dying declaration dated 01.04.2011 prosecution examined PW5 Balkrishna Namdeo Madankar. The evidence of PW5 Balkrishna Namdev Madankar shows that he was serving as an Executive Magistrate and Nayab Tahsildar. He received a memo from police station Khadan on 12 noon and he visited the Akola Burn Care, a private hospital for recording statement of Rekha Gajanan Harne. He met Rekha and the doctor was also present there. He asked the people present in the ward to go out. Thereafter the doctor examined the patient to verify whether she was physically fit. On examination he found that she is capable of speaking and doctor has given the certificate. Thereafter, he asked the name of the patient, she disclosed her name thereafter, she also disclosed that she could speak and answer logically and on asking her she disclosed that her husband was always quarreling with her and Criminal Apeal193.15.odt 19/ 47 suspecting her character. On the day of incident at about 09.00 p.m. her husband had quarreled with her and he poured kerosene on her and set her ablaze. Accordingly, he recorded the statement as per her say. The said statement was read over to her and thereafter, she put her thumb impression on it, the said statement is at Exh. 42. Again he asked the doctor to examine Rekha, he examined her and issued a certificate, till recording her statement except the doctor and Rekha no other person were present there. His cross-examination shows that he is not aware whether Rekha's parents and relatives were there. He also admitted that he has not recorded the statement in a question answer form. He further admits that the entire body of Rekha having burn injuries.
22. To corroborate the said version the prosecution further examined PW6 Dr. Swapnil Vitthalrao Thakre who deposed that on 31.03.2011 his duty hours were 08.00 am to 02.00 p.m. and about 11.00 am API Kuralkar came to me issued a letter asking him whether the patient in burn ward is able to give statement or not. Accordingly, he examined her and ascertained that she was in a Criminal Apeal193.15.odt 20/ 47 position to talk. Similarly, he examined her pulse and on that basis he gave endorsement that she is in a position to give her statement, the said endorsement is at Exh. 46. Thereafter, Shri. Kuralkar recorded the statement of Rekha in his presence. Thereafter he signed that statement and noted the remark that it was recorded in his presence. His evidence further shows that Rekha was fully conscious while giving a statement. His cross- examination shows that Rekha was admitted to his hospital on 25.03.2011. On 31.03.2011 her relatives were present in the hospital, but he denied that they were present near to her when her statement was recorded. He specifically stated that they were removed from there when her statement was recorded. His admission during the cross-examination shows that the patient was in a pain and therefore pain killers were given. He specifically admits that some sedatives were also given to her. His further cross- examination shows that he identifies the signature of doctor Sharma on reverse side of the letter dated 31.03.2011 which addressed to the Special Executive Magistrate by Dr. Sharma wherein written a remark was that patient is in a conscious state Criminal Apeal193.15.odt 21/ 47 but because of dressing at 03.00 p.m. she is unable to give statement. The said certificate of doctor Sharma is at Exh. 48. The letter issued by the hospital dated 25.03.2011 was also shown to him, wherein it mentioned that the deceased caught fire as her saree fell on lamp and that was narrated by the husband. Similarly it is mentioned there in that dying declaration of Smt. Rekha was already recorded, the said letter is an Exh. 49.
23. The another witness Anil Narayanrao Kuralkar is examined by the prosecution vide Exh. 52. His evidence shows that he visited the hospital, met the Medical Officer of the hospital and ascertained whether patient is in a position to give statement or not. The letter Exh. 46 bears his signature. Thereafter, the doctor examined her and gave his remarks and disclosed that she was capable to give statement. Thereafter he recorded her statement. She stated that her statement was recorded previously in Government Hospital but since her husband was present there, she has given a statement as dictated by her husband. She had also stated that accused had quarreled with her till about 12 pm in the Criminal Apeal193.15.odt 22/ 47 night and thereafter he had poured kerosene on her person from a can and lighted her by match stick.
24. His cross-examination shows that he had received phone call that a women from area was admitted in Akola Burn Care Unit. Authorities of police station Khadan had not intimated to him that dying declaration of Rekha was recorded on 25.03.2011. From the statement of Rekha he learnt that her statement was previously recorded on 25.03.2011.
25. His cross-examination further shows that there are houses adjoining the spot of incident and can of kerosene was in the cupboard in the wall at the spot.
26. As per the evidence of PW10, on 01.04.2011 when he was on the duty at about 10.00 noon, Tahsildar, Akola had come to the hospital, he wanted to record statement of Rekha, he asked him whether she was conscious and in a position to make statement. He examined and communicated to her and certified that she is Criminal Apeal193.15.odt 23/ 47 conscious and she can make a statement. The certificate is Exh. 59A is the same. Thereafter, Tahsildar recorded the statement of Rekha Gajanan Harne (Exh.42). After the statement was recorded he again examined the patient and gave an endorsement exh.59-B. His cross-examination shows that on 25.03.2011 in his presence the statement was recorded and Rekha has disclosed that she has sustained the burn injuries accidentally. He denied that as she has sustained the 75% burns he or she cannot talk for a long time. He further admits that on the say of the relatives of the Rekha on 01.04.2011 arrangements were made to record the dying declaration. Thus as per the evidence of this witness Exh. 59 is recorded by the Executive Magistrate who is not examined by the prosecution. The Executive Magistrate who has recorded the dying declaration on 31.03.2011 is not examined by the prosecution.
27. The another piece of evidence on which the prosecution relied upon is the evidence of PW2 Manohar Damodar Lad who has conducted a part investigation. As per his evidence on 5.4.2011 injured Rekha died and therefore he converted the offence into Criminal Apeal193.15.odt 24/ 47 Section 302 of IPC. He seized muddemal and forwarded it to the C.A. The C.A. reports are received which are included by him in the investigation papers. His cross-examination shows that the first dying declaration of the Rekha was recorded on 25.03.2011. PW5- Balkrishna Namdeo Madankar is examined to prove the dying declaration dated 01.04.2011, which is already discussed in the earlier part of the judgment. PW7- Dnyaneshwar Pandurang Bakal is examined by vide Exh. 50, who has acted as panch on the spot Panchanama. His evidence is to the extent that, in his presence police seized a lamp, a can of kerosene and other articles from the house. His evidence shows that there was electric supply connection to that house. His cross-examination shows that there was a dust on the Tembha and it was used. Thus, the entire evidence shows that besides the oral evidence of PW1- Nandkishor Atmaram Phate, PW3- Sushilabai Atmaram Phate and PW4- Mohan Sevakram Edhole. The evidence of Medical Officer PW10-Dr. Vinod Dayashankar Sharma shows that the dying declaration of the deceased was recorded on 25.03.2011 as well as on 01.04.2011. The evidence of PW6- Dr. Swapnil Vitthalrao Thakre shows that the Criminal Apeal193.15.odt 25/ 47 dying declaration also recorded by PW8- Anil Narayanrao Kuralkar (API) on 31.03.2011. Thus the evidence on record shows that two dying declarations one recorded by PW8- Anil Narayanrao Kuralkar is recorded on 31.03.2011 wherein the endorsement is given by PW6- Dr. Swapnil Vitthalrao Thakre. Whereas the another dying declaration was recorded by PW5- Balkrishna Namdeo Madankar on 01.04.2011 wherein the endorsement was given by PW10- Dr. Vinod Dayashankar Sharma. Whereas the Executive Magistrate who has recorded the statement on 25.03.2011 is not examined by the prosecution. Thus, on the basis of the above oral as well as the documentary evidence the prosecution claimed that it has proved its case beyond reasonable doubt. As far as the nature of the death is concerned, it is due to the burn injuries. Two stories were put forward that deceased died accidentally, whereas as per the prosecution the accused has caused the death of the deceased. The C.A. report on record Exh. 34 to 36 shows that Exh. 34 is in respect of analysis of viscera. Whereas Exh. 35 is in respect of analysis of empty plastic can, burnt saree, burn petticoat and burnt blouse. The analysis report shows result of the test for the deduction of the Criminal Apeal193.15.odt 26/ 47 kerosene residues on Exh. 1,2,3 and 4 are positive. Thus the entire case of the prosecution is rested upon the dying declaration.
28. As per the submission of the learned counsel for accused that three dying declarations are recorded which are inconsistent on material particulars and the prosecution has suppressed the first dying declaration. Therefore, the evidence as to the dying declaration is not to be accepted upon. He submitted that prosecution tried to canvass that first dying declaration was recorded in presence of the husband and due to the pressure of the husband she has narrated the story of accidental burn injuries. However, evidence of PW10 nowhere states regarding the presence of the husband at the time of recording of her first dying declaration. He submitted that the evidence of PW10 specifically shows that patient has given the history and as per the narration of the patient he has informed the police that she sustained the burn injuries accidentally. His evidence further shows that the dying declaration of the deceased was recorded on 25.03.2011. PW2 has also admitted the same as far as the presence of the accused at the Criminal Apeal193.15.odt 27/ 47 time of recording her first dying declaration is concerned is not established by the prosecution. He submitted that in first dying declaration the story of accidental burn injuries is narrated by the deceased, not only to the Executive Magistrate but to the Medical Officer PW10 also and on that basis the intimation was given to the police. He further submitted that as far as the second and third dying declaration is concerned though the parents of the deceased came on 25.03.2011 as she has immediately disclosed the incident to them but her dying declaration was not recorded immediately after the said disclosure, therefore the possibility of embellishment and recording of the dying declaration after thought to implicate the accused cannot be ruled out.
29. Per contra, learned APP submitted that as far as the role of the present accused of setting her ablaze is concerned which consistent, and therefore, the appeal being devoid of merits liable to be dismissed.
30. Whether the dying declarations recorded by PW5- Balkrishna Criminal Apeal193.15.odt 28/ 47 Namdeo Madankar and PW8- Anil Naraynrao Kuralkar are inspiring the confidence or not is to be seen in the light of well settled legal position. The jurstic theory regarding acceptability of a declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Great caution must be exercised in considering the weight to be given to this kind of evidence on account of the existence of many circumstances which may affect their truth.
31. The Hon'ble Apex Court in the case of Laxman Vs. State of Maharashtra, 2002 ALL MR (Cri) 2259 SC , held that normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of Criminal Apeal193.15.odt 29/ 47 the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. It is further held that, what evidential value or weight has to be attached to such statement necessarily depends upon the facts and circumstances of each particular case. What is essentially required is that the person who records dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor, the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution therefore the voluntary and truthful nature of the declaration can be established otherwise.
32. In the case of Krishan and Ors. Vs. State of Haryana, 2013 ALL MR (Cri.) 727, the Hon'ble Apex Court has held that where the dying declaration is true and correct, the attended circumstances Criminal Apeal193.15.odt 30/ 47 show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the court to look for corroboration. In such cases, the dying declaration alone can form the basis for the conviction of the accused. But where the dying declaration itself is attended by suspicious circumstances, has not been recorded in accordance with law and settled procedures and practices, then it may be necessary for the Court to look for corroboration of the same.
33. In Uttam Vs. State of Maharashtra reported in (2022) 8 SCC 576, wherein the Hon'ble Apex Court laid down the principles which needs to be kept in mind while considering the dying declaration, which is reproduced as under;
"(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.
(iii) The Supreme Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of Criminal Apeal193.15.odt 31/ 47 tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration.
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence.
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail.
(x) Where the prosecution version differs from the version as given in the dying declaration, the said dying declaration cannot be acted upon."
34. Thus, it is a settled law that the statement made by the deceased by way of a declaration is admissible in evidence under Section 32(1) of the Evidence Act. It is not in dispute that, her statement relates to the cause of her death. In that event, it Criminal Apeal193.15.odt 32/ 47 qualifies the criteria mentioned in Section 32(1) of the Evidence Act. There is no particular form or procedure prescribed for recording a dying declaration nor it is required to be recorded only by Magistrate. As a general rule, it is advisable to get the evidence of the declarant certified from the Doctor. In appropriate cases, the satisfaction of the person recording the statement regarding the state of mind of the deceased would also be sufficient to hold that the deceased was in a position to make a statement. It is settled law that if the prosecution solely depends upon the dying declaration, the normal rule is that the Court must exercise due care and caution to ensure genuineness of the dying declaration, keeping in mind that the accused had no opportunity to test the veracity of the statement of the deceased by cross-examination.
35. The law does not insist upon the corroboration of dying declaration before it can be accepted. The insistence of the corroboration to a dying declaration is only a rule of prudence. When the Court is satisfied that the dying declaration is voluntary and not tainted by tutoring or animosity, and is not in a product of Criminal Apeal193.15.odt 33/ 47 the imagination of the declarant, in that event, there is no impediment in convicting the accused on the basis of such dying declaration. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated on its own merits.
36. In the present case, the prosecution has led the evidence of PW8- Anil Narayanrao Kuralkar. As per his evidence on 31.03.2011 he has approached to the doctor in Akola Burn Care Unit and ascertained whether injured is in a position to give statement or not and Medical Officer has examined the deceased in his presence and gave a statement and thereafter he recorded the statement. This evidence is to be appreciated in the light of the fact that Exh. 48 is the certificate signed by Dr. Vinod Dayashankar Sharma wherein he has specifically stated that patient is conscious but she is not able to give a statement today. The said letter and signature is admitted by PW6- Dr. Swapnil Vitthalrao Thakre who has specifically admitted during his cross-examination that he knows the signature of Dr. Sharma, Dr. Sharma had written a remark that patient is in a Criminal Apeal193.15.odt 34/ 47 conscious state but because of dressing, she was not able to give statement today. The same endorsement is dated 31.03.2011 and on the same day the statement of the deceased was recorded by PW8. The further cross-examination of this PW6 shows that the patient was not only given a pain killers but she was also administered sedatives to reduce her pain. In the light of the admissions and specifically in the light of the endorsement given by Dr. Vinod Dayashankar Sharma stated by PW6 it reveals that she was not in a position to give statement. The recording of the statement by PW8 - Anil Naraynrao Kuralkar creates a doubt. When there is specific medical evidence that the patient was given a sedative and she was not able to give a statement on that day, the satisfaction by PW8 as to her physical as well as mental condition was required which is absent in the present case. Therefore the said dying declaration is not free from doubt.
37. Another dying declaration is recorded by PW5- Balkrishna Namdeo Madankar. As per his evidence on 01.04.2011 he received a requisition accordingly he went in the hospital and requested the Criminal Apeal193.15.odt 35/ 47 Medical Officer there to ascertain whether she is in a position to give statement and thereafter, he also ascertained the said fact and thereafter, the statement was recorded. His evidence shows that he is not aware whether her parents and relatives were present there or not. In the light of the evidence of PW10 is material who has admitted during the cross-examination that on the request of the relative of the Rekha the arrangements were made to record her dying declaration. Thus this admission shows that on the request of the relatives of the deceased the Executive Magistrate was called though her statement was recorded on 31.03.2011. This evidence is further to be appreciated in the light of the fact that the evidence of PW1 - brother of the deceased shows that on 30.03.2011 the deceased has disclosed the incident to her mother but no complaint was lodged by him though it was disclosed that the accused has poured the kerosene on the person of the deceased. Evidence of PW3 on the contrary shows that they took Rekha to the private hospital and she was treated in the private hospital wherein she has disclosed the incident to her. Despite the disclosure on 25.03.2011 itself no attempt was made to record her statement Criminal Apeal193.15.odt 36/ 47 through Executive Magistrate or by police till 31.03.2011. It is sufficient to infer that after thought it was decided to get it recorded through the Executive Magistrate and the accused is implicated in the alleged offence. In fact whether the deceased was in a position to give statement or not itself is doubtful in view of Exh. 48 the endorsement of the Medical Officer Dr. Vinod Dayashankar Sharma. While testing the evidentiary value of the said dying declaration and in the light of the fact that the prosecution has suppressed the first dying declaration and not adduced the evidence by examining the Executive Magistrate who has recorded the first dying declaration. The law is settled on the aspect of multiple dying declaration and it is held that if a dying declaration suffers from infirmity, it cannot be the sole basis for convicting the accused. In those circumstances, the Court must step back and consider whether the cumulative factors in a case make it difficult to rely upon the said dying declarations. It is further held that, the dying declaration must inspire confidence so as to make it safe to act upon. Whether it is safe to act upon a dying declaration depends upon not only the testimony of the person recording the Criminal Apeal193.15.odt 37/ 47 dying declaration but even a Magistrate and also all the material available on record and the circumstances including the medical evidence. The Court must satisfy itself that the person making the dying declaration was conscious and fit to make statement for which purposes not only the evidence of the person recording the dying declaration but also cumulative effect of the other evidence including the medical evidence and the circumstances must be taken into consideration.
38. In the present case as already observed that the evidence of PW1 and PW3 as to the disclosure regarding ill-treatments at the hands of the accused is also not inconsistent. As per PW1 the ill- treatment started after the birth of a third daughter. Whereas as per the evidence of PW3 mother the ill-treatment started immediately after the marriage. It is pertinent to note that the marriage has taken place on 04.07.1995 and the alleged incident has taken place in the year 2011 that is after 16 years. In between 16 years there is not a single complaint by the deceased to her parents as to the ill- treatment. At least there is no material on record to show that at Criminal Apeal193.15.odt 38/ 47 any point of time deceased has made a complaint regarding the ill- treatment at the hands of the accused. On the contrary the cross- examination of PW1 shows that till the birth of third daughter everything was smooth. His cross-examination already also shows that both of them were living happily marriage. Evidence of PW3 mother also shows that on various occasions the deceased was visiting their house as well as they were also visiting the house of the deceased but not a single instance is narrated either by PW1 or PW3 as to the ill-treatment at the hands of the accused in their presence.
39. Section 498A of IPC was introduced in the year 1983 with the primary objective of protecting married women from cruelty at the hands of their husband's, in-laws. The section provides a broad and inclusive definition of cruelty in compassing both physical and mental harm to the womens body or health. In addition it covers acts of harassment designed to coerce the women or her family into fulfilling unlawful demands for property or valuable security, including demands realted to dowry. The definition of "harassment"
Criminal Apeal193.15.odt 39/ 47 under the explanation to Section 498A is specifically outlined in clause (b), independent to the willful conduct describe in clause
(a). Thus, necessitating a separate reading of the two. It is significant to note that inclusion of the word "or" at the end of clause (a) clearly indicates that "cruelty" for the purpose of Section 498A, can either involve willful conduct that causes mental or physical harm, or harassment related to unlawful demands, such as dowry. Moreover, these forms of cruelty can co-exist, but the absence of a dowry related demand does not preclude the application of the Section in cases where there is mental or physical harassment unrelated to dowry. Thus Section 498A of IPC recognises two distinct forms of cruelty i) If involving physical or mental harm in clause (a) and the other involving harassment linked to the unlawful demands for property or valuable security. As far the present case is concerned, admittedly, there is no evidence on record to show that there was any unlawful demand at the hands of the accused. As far as physical cruelty is concerned there is no specific instances narrated by the witnesses that prior to the incident at any point of time, the deceased was treated with cruelty.
Criminal Apeal193.15.odt 40/ 47
40. In the light of the language used in the Section the provision would be applicable only to such an extent where the husband or the relative of the husband of a woman, subjects such woman to cruelty. When the ingredients of the aforesaid Section are present in a particular case in that event the person concerned against whom the offence is alleged would be tried in accordance with law. In trial instituted against him in order to constitute cruelty under the said provision there has to be harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or a case is to be made out to the effect that there is failure by her or any person related to her to meet such demand. When the allegation made in the First Information Report and the charge sheet is examined in the present case, in the light of the aforesaid provision, we find no prima facie case even under the aforesaid provision to attract the case of a cruelty.
41. In the present case we as already observed that the prosecution is relied upon the three dying declaration, first dying Criminal Apeal193.15.odt 41/ 47 declaration which is in favour of the defence that she sustained burn injuries accidentally which is not brought on record by the prosecution and therefore the adverse inference can be drawn against the prosecution. The second dying declaration which is recorded on 31.03.2011 is also doubtful in the light of Exh. 48 which is the endorsement of the Dr. Vinod Dayashankar Sharma which shows that she was not in a position to give statement on that day. The said endorsement is of dated 31.03.2011. Then question arise when she was not in a position to give statement how PW8 Anil Narayanrao Kuralkar has recorded the said statement. The said dying declaration is also doubtful on the ground that though as per the prosecution witnesses the disclosure was made on 30.03.2011 but no attempt was made to lodge a complaint despite the disclosure by the deceased as to the ill-treatment and regarding the incident, no attempt was made also to the record the statement immediately. The evidence of PW1 and PW3 is also inconsistent. As per the evidence of PW1 when deceased was shifted to the private hospital she has Criminal Apeal193.15.odt 42/ 47 disclosed about the incident. Her admission in Akola Burn Care Unit appears to be on 25.03.2011 wherein she has disclosed that she has sustained burn injuries accidentally. PW3 has also stated that as soon as they shifted her in a private hospital the deceased disclosed about her burn injury that is caused as the accused poured kerosene on her and set her on fire. Thus in initial dying declaration which was recorded in presence of PW10- Dr. Vinod Dayashankar Sharma, she has not assigned any role to the accused but after the arrival of the parents and i.e. after four to five days she has attributed the role to the present accused to the extent pouring the kerosene and setting her ablaze. Therefore there is ample reasons to ascertain that the said dying declaration was recorded after thought, after the arrival of the parents and therefore the possibility of recording dying declaration due to the tutoring cannot be ruled out.
42. Having considered various pronouncements, the Hon'ble Apex Court laid down following principles for a Court to consider Criminal Apeal193.15.odt 43/ 47 when dealing with a case involving multiple dying declarations. The said principles are reproduced by the Hon'ble Apex Court in the case of Abhishekh Sharma Vs. State (Govt. of NCT of Delhi) MANU SC1159/2023 which are as follows.
"(1) The primary requirement for all dying declarations is that they should be voluntary and reliable and that such statements should be in a fit state of mind;
(2) All dying declarations should be consistent. In other words, inconsistencies between such statements should be 'material' for its credibility to be shaken;
(3) When inconsistencies are found between various dying declarations, other evidence available on record may be considered for the purposes of corroboration of the contents of the dying declarations.
(4) The statement treated as a dying declaration must be interpreted in light of surrounding facts and circumstances.
(5) Each declaration must be scrutinised on its own merits.
The court has to examine upon which of the statements reliance can be placed in order to the case proceeds further. (6) When there are inconsistencies, the statement that has been recorded by a Magistrate or like higher officer can be Criminal Apeal193.15.odt 44/ 47 relied on, subject to the indispensable qualities of truthfulness and being free of suspicion.
(7) In the presence of inconsistencies, the medical fitness of the person making such declaration, at the relevant time, assumes importance along with other factors such as possibility of tutoring by relatives, etc."
43. A perusal of the dying declarations as stated above shows that, it was recorded by Police Officer as well as by Executive Magistrate which are inconsistent on material particulars and it is also doubtful in the light of Exh. 45. For the basis of conviction, if the dying declaration is true, reliable and has been recorded in accordance with established practice and principles it can be acted upon. By applying the test to accept the said dying declaration, admittedly the dying declarations are not consistent as well as doubtful. Thus, the law is quite clear that, if the dying declaration is absolutely unacceptable and nothing is brought on record that the deceased was in such a condition to make a statement, there is no justification but to discard the same.
44. In the present case, the evidence of PW8-Anil Naraynrao Criminal Apeal193.15.odt 45/ 47 Kuralkar and PW6- Dr. Swapnil Vitthalrao Thakre shows that the deceased was not in a position to give statement in the light of Exh.
48. Moreover the sedatives were given to her and therefore ascertaining her mental fitness appears to be doubtful. The circumstance that the presence of the relative and after arrival of the relative the subsequent dying declarations are recorded after four to five days may be a result of tutoring and that possibility cannot ruled out. The dying declarations raise the question as to its reliability. Additionally, besides the dying declarations there is no evidence on record to point out the guilt of the accused. On the contrary the evidence on record shows that he has extinguished the fire, if there was an intention of the accused to cause the death of the deceased there is no reason for him to extinguish the fire. While extinguishing the fire he has also sustained, injuries to his both hands, which is sufficient to infer that deceased had sustained the burn injuries accidentally and accused has extinguished the fire. It is an established principle that, a dying declaration, if it is free of tutoring, prompting can form the sole basis of conviction. However, having perused the record minutely, we do not find any evidence by Criminal Apeal193.15.odt 46/ 47 which we may uphold the judgment of the trial Court. For example, nothing on record indicates that deceased was ill-treated by the present accused and out of such ill-treatment she was set on fire.
45. In the light of the above discussion we are satisfied that the dying declarations are not trustworthy and the possibility of tutoring cannot be ruled out. The dying declarations are also not consistent, therefore, we are not inclined to accept the said dying declarations by placing reliance upon the same. We are, therefore, of the opinion that the prosecution failed to prove that the evidence of dying declarations is cogent, reliable and trustworthy. In our considered opinion, the trial Court failed to appreciate the evidence and convicted the accused. The plea of the accused is succeeded as the accused has shown that the dying declarations are inconsistent, and possibility of tutoring cannot be ruled out. The veracity of the oral dying declaration is also doubtful.
46. We are therefore of the opinion that the accused succeeds. In view of that appeal deserves to be allowed. Accordingly, we proceed Criminal Apeal193.15.odt 47/ 47 to pass following order.:-
ORDER
(i) The Criminal Appeal is allowed.
(ii) The judgment and order of sentence passed in Sessions Trial No. 40/2012 passed by the Sessions Judge, Akola, is hereby quashed and set aside.
(iii) The Appellant/accused is acquitted from the charges punishable under Section 302 and 498A of the Indian Penal Code and his bail bonds stand cancelled.
(iv) R& P be sent to the trial Court. (NANDESH S. DESHPANDE, J.) (URMILA JOSHI-PHALKE, J.) Shubham