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12. Mr. Rahul Kate, the learned Counsel appearing for the appellant-accused No. 2 submitted that he would only add to the submission made by Mr. Mane and pointed out to this Court that (two statements i.e., one recorded by PSI Ramakant Ghughardare which was treated as an F.I.R. (Exhibit-,41) and other recorded by (the Executive Magistrate P.W. 7 Shaikh i.e., dying declaration (Exhibit-33) are not consistent so far as the victim Anita has assigned different roles to the appellants-accused. In the statement recorded by the police, it is stated by the victim Anita that the appellant/accused Vidya poured kerosene and accused Saraswati set her ablaze by lighting a match-stick, whereas, in the dying declaration (Exhibit-33) she has stated that it was Saraswati who poured kerosene and Vidya lit fire and this also is sufficient to discard these two dying declarations. It is, therefore, submitted that it will be unsafe to reply upon these two dying declarations and uphold the finding of guilt arrived at by the learned Trial Court and sustain the conviction and sentence.

15. The only point which arises for our consideration is whether the appellants-accused can be held responsible for causing death of deceased Anita Kumbhar by pouring kerosene on her and setting her ablaze?

16. The learned Trial Court has mainly placed reliance on the two dying declarations in order to arrive at the finding that the appellants-accused are guilty of having committed murder of deceased Anita. These two dying declarations are in the form of complaint of deceased Anita recorded by PSI Ghughardare which was treated as an F.I.R. and the one recorded by P.W. 7 Shri Ahmed Shaikh, Executive Magistrate. Dr. Sudhir Bakhale (P.W. 6) was examined by the prosecution on the point of admission of Anita the deceased in the Civil Hospital, Solapur on 29th September, 1997. According to his evidence before the Court, he examined her, at that time, PSI of Jail Road Police Station was also present. He made enquiries with him relating to the physical and mental condition of Anita as he wanted to record her dying declaration. Therefore, the Medical Officer examined her and put questions to Anita in order to find out her mental condition and he found her to be conscious and able to speak and, therefore, he made endorsement before recording the dying declaration of Anita and signed the same. Thereafter, PSI Ghughardare recorded dying declaration of Anita in his presence and after her dying declaration was recorded, the Doctor gave his endorsement below the dying declaration that victim Anita was conscious throughout. According to the Medical Officer, dying declaration was recorded at 3.30 p.m. and completed by 4.00 p.m. On the same day, another dying declaration of Anita was recorded by Shri Ahmed Shaikh, Executive Magistrate (P.W. 7) in his presence which he has also confirmed that it was recorded after he certified Anita to be in a fit condition to make a declaration. It has come in the evidence of P.W. 6 Dr. Bakhale that at the relevant time her relatives were present but they were kept outside the room. Though the Medical Officer in his cross-examination has stated that he does not remember the contents of the dying declaration, we do not think that this is material for our consideration as the Medical Officer is examined only on the point that when the PSI and the Executive Magistrate recorded her dying declarations, she was mentally and physically in a fit condition to make such a statement. Therefore, we do not find that there was any lapse on the part of the prosecution in bringing on record the fact that Anita's dying declarations were recorded by these two persons i.e., PSI Ghughardare and Executive Magistrate P.W. 7 Shri Ahmed Shaikh.

17. PSI Shri Ghughardare (P.W. 9) gave evidence that on 29th September, 1997 he was serving in Jail Road Police Station at about 3.00 p.m. when P.C. Rathod gave information regarding the incident and he handed over the letter to him stating that Saraswati and Vidya poured kerosene on the person of Anita and they lit the fire. Therefore, he informed him to go to the Civil Hospital. The said letter is placed at Exhibit-35. Pursuant to which, he visited Civil Hospital at about 3.15 p.m. and met Doctor and saw Anita was in the burn ward. He asked Medical Officer as to whether she was in a fit condition to give her statement or not and. when she was so certified, recorded her statement which is at Exhibit-41. In Exhibit-41 on the basis of which offences came to be registered against the appellant/ accused, it was stated by Anita that on 29th September, 1997 when there was no one at home except appellant/accused Nos. 1 and 2 at about 12.45 p.m. she was going to the terrace to bring their clothes, at that time when she was climbing the staircase, her elder sister-in-law Saraswati suddenly came there. She held her hand by the wrist. She was followed by her other sister-in-law i.e.; appellants-accused No. 2 Vidya. According to her, appellant-accused Saraswati caught hold of her and appellant-accused Vidya poured kerosene on her person from a plastic can of blue colour and appellant-accused Saraswati lit a match-stick and set her ablaze. Thereafter, she shouted "Vachava Vachava" and on hearing the shouts, the neighbours came there. Out of them, Dr. Nakate placed Satranji on her person and that she was brought to the hospital by her brother. In her statement recorded by P.W. 7 Shri Ahmed Shaikh (Executive Magistrate) in answer to the question No. 6 as to how you suffered injuries on your person, she stated that on 29th September, 1997 in the afternoon at about 12.45 her elder sister-in-law Saraswati held her hand and poured kerosene on her and her younger sister-in-law Vidya had lit match stick and set her ablaze because of which, she suffered burn injuries on her chest, neck, both hands, ears, back and thighs. The cause for this act on their part, has been explained by her in answer to question No. 11 that these appellants-accused used to accuse her that she is a ghost and she is in the habit of stealing money from the house and for this reason they had burnt her. The contentions of the learned Counsel appearing for the appellant-accused No. 2 that there is a discrepancy in the two dying declarations, as regards the role attributed to the appellant-accused i.e., in the dying declarations Exhibit-41, it is alleged that Vidya had poured kerosene on deceased Anita and Saraswati had lit the match stick and set her ablaze, on the other hand, in the dying declaration (Exhibit-33) which has been recorded by Executive Magistrate Mr. Shaikh, it is the other way i.e., Saraswati had caught hold of her hands and poured kerosene on her and Vidya had lit match stick and set her ablaze, appears to be correct. The learned A.P.P. has tried to reconcile this discrepancy by saying that the fact remains that both the appellant-accused participated in committing crime of ghostly murder of hapless victim Anita and if the Court appreciates this in the backdrop that the victim had suffered burn injuries to the extent of 83% this by itself should not be sufficient to discard two dying declarations. We may not like to express our opinion as regards the inconsistency at this stage without considering further evidence on record.

23. It is also pointed out to us that the learned Trial Court led much emphasis to the two dying declarations in order to convict the appellant-accused. In our opinion, the Trial Court ought to have taken into consideration overall view of the matter and it is only thereafter tested or scrutinised two dying declarations which also does not appear to be consistent insofar as the role attributed to the two appellant-accused, is concerned. We may also like to record that the police had already got the information through Police Constable Tendulkar that the victim was set ablaze after pouring kerosene on her person. But the prosecution has not taken sufficient care to place before the Court the source of information from where Police Constable Tendulkar learnt about the complicity of the appellant-accused and passed it on to his superiors as the evidence brought on record, does not disclose this.