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The subsequent conduct of these two witnesses as influenced by the fact in issue i.e. Police Patil having heard the dying declaration is so passive that the passive reaction makes the claim further doubtful. The two witnesses claim to have accompanied the victim upto Rural Hospital, Raver. Admittedly Police and Executive Magistrate had reached there. There was an attempt to record the dying declaration of the victim, which could not be recorded because the victim was semi conscious and she became further incoherent by the time Executive Magistrate attempted to record her statement. PW 4 Vijay Patil is a Police Patil. He claims to be present at Raver hospital with the father of the victim and Police had visited the hospital at Raver before this party departed for civil hospital. The Police Patil has neither informed nor tendered any report in writing to the Police of deceased having made a dying declaration to him thereby implicating husband / appellant as a person responsible for her burn injuries. Vijay has tried to explain this by saying that he did not inform the Police because he believed that Sarlabai may survive. Thus, he left the responsibility of disclosing the truth upon the victim, who had suffered 90% burns and as is evident from the medical report apparently sinking towards death at that time. That is why her dying declaration could not be recorded at Raver. Neither it is the claim of father that he informed the Police of having learnt about oral dying decla ration of the victim from the Police Patil and that they should take some cognizance of It. A report, may be brief on the part of Police Patil while at Raver hospital to the Police authorities, who were available would have been the first information report of the incident and such a report could have given a silver lining of reliability to the claim of Police Patil as well as father of the victim of Police Patil having heard oral dying declaration soon after the incident. The same is missing and that is why we have expressed that subsequent conduct as influenced by fact in issue being passive reaction on the part of witnesses concerned, makes the story of this oral dying declaration a doubtful one.

For the reasons discussed in para 19, the learned Judge has recorded a finding that there was no chance of tutoring. In doing so, the learned Judge accepted the position propounded by the defence that father of accused had accompanied the victim to civil hospital. In fact, the learned Judge has discussed the documentary evidence available on record in the form of case paper of Rural Hospital, Raver (Exh. 46) in para 16 of the judgment. Exhibit 46 shows that it was father of the accused, who signed the case paper. It was father of the accused, who paid the charges for ambulance for carrying the victim from Rural Hospital, Raver, to Civil Hospital, Jalgaon. This fact situation is a twin edged blade. If the victim was taken and admitted to Rural Hospital, Raver, by father of the accused, if it was father of t}ie accused, who was given intimation by the medical officer regarding patient being serious and requirement to shift her to better medical centre and if it was the father of accused, who paid the charges of the ambulance, the presence of father of the victim at the Rural Hospital, Raver, becomes doubtful. In fact, this fact situation is so tricky that it causes disadvantage to the prosecution from both sides. If the prosecution story is accepted that father of the deceased carried her in auto rickshaw upto Rural Hospital, Raver, and thereafter to Civil Hospital, Jalgaon, this provides an opportunity to the father to tutor. This invites the father to explain as to why he had no talk with his daughter till the time they reached civil hospital. It is the claim of the father that he independently spoke to his daughter only after hearing the dying declaration recorded by PSI Devendra Patil. In fact, if father had heard about oral dying declaration from the Police Patil or if he had heard the recorded dying declaration when it was being recorded by Devendra Patil, the conduct on this part in claiming that he again independently enquired the daughter and she repeated the story of her husband being culprit is most unnatural and unpalatable. If this story is to be accepted, the claims of Police Patil and even this PSI of having recorded dying declaration in presence of the father get weakened. It we accept the situation as propounded by the defence that it was the accused and his father who took the victim to Rural Hospital, Raver (in fact there is nothing on record to indicate that they also accompanied victim to Civil Hospital, Jalgaon), then the claim of the father that he had received telephonic message from Police Patil Vijay and he had reached the residence of accused within 15 minutes and thereafter he took the victim and initially admitted her at Rural Hospital, Raver, stands falsified on the basis of do cumentary evidence in the form of case paper (Exh. 46), which shows no role played by the father. The possibility of absence of the father, therefore, cuts across the story of oral dying declaration heard by Police Patil Vijay. Father's claim that he enquired the daughter again also has the same effect, not only adverse to oral dy-ing declarattoti claimed by Police Patil, but also upon the recorded dying declaration (Exh.23) by PSI Devendra Patil. We, therefore, feel that the claims of oral dying declarations having been heard either by the Police Patil or by the father, are doubtful and certainly not convincing.

The recorded dying declarations are also assailed by expressing doubts about the state of health of the victim and this is done by pointing out the details regarding the state of health as available in the case paper of Rural Hospital, Raver. The prosecution has not bothered to bring on record the case papers at Civil Hospital, Jalgaon. The case paper of Rural Hospital, Raver, is at Exhibit 46, which gives the medical history of the patient from 8-50 a.m. to 9-10 a.m., a time of 20 minutes between admission and departure for Civil Hospital, Jalgaon. At 8-50 a.m., there is endorsement in the column for "treatment and diet", to the effect "inform low G.C. to relatives and the Police". There is similar endorsement at 8-55 a.m. as also at 9-10 a.m. There is endorsement under signature of father in law Kashinath Raimale about having received the intimation regarding state of health of deceased Sarla. At all three entries, the pulse of the victim is said to be feeble and blood pressure 100/70 and 100/60. In the last entry, even the speech is said to be slurred. That patient was not in a fit condition to make any statement while at Rural Hospital, Raver, stands confirmed by partly recorded dying declaration (Exh. 44). Eventually, only half a sentence is recorded, which reads :

At the cost of repetition, we may point out that learned trial Judge has ruled out the possibility of tutoring inspite of the claim of the father that he accompanied his daughter in rickshaw from residence to Rural Hospital, Raver, and then in the ambulance from Raver to Civil Hospital, Jalgaon. The learned Judge has conveniently accepted the defence theory to support the prosecution and rule out tutoring by accepting the presence of father of accused. Presence of father of ae-cused stands confirmed till the stage of departure from Rural Hospital Raver, but at the time of recording dying declarations at Civil Hospital, Jalgaon, as admitted by PW 5 Devendra Patil, only Sarlabai, doctor, his writer Constable and father of Sarlabai were present. Similar position is confirmed by Executive Magistrate Mr. Ramlal. He has admitted that when he recorded statement" of Sarlabai, apart from victim Sarlabai, medical officer, two other patients in the burn ward and himself were the only persons present in the Ward. Thus, the insulation by presence offather of the accused against the tutoring, as felt to be in existence by the trial Court, is not guaranteed by the material on record. The party departed from Raver at about 9-10a.m. and according to deposition of the father, they could have reached Jalgaon within 2 and half hours i.e. by about 11-30 or 12 noon and, thus, father had an opportunity to interact with the daughter atleast for one and half hour. In the matter of Rasheed Beg relied upon by learned counsel, the witness claiming to have heard the dying declaration bore enmity with the named accused, which was an additional circumstance for looking to the dying declaration with suspicion. We have questioned Advocate Shri Chatterji as to why it can be said that father in law could tutor the daughter to inculpate her husband. Learned Advocate has rightly placed reliance upon the facts that father has conveniently developed stories around the injuries noticed on the left arm as also the forehead of the victim, although he had not complained about those incidents dated 26-1-2004 and 28-1-2004, any time earlier. In this context, we may refer to cross examination of the father and more particularly para 6 of his deposition, which demonstrates how his chief examination is full of improvements over and above the Police statement. He has narrated a story of couple of landlords having driven out his son in law, because they noticed him to be ill-treating Sarlabai. He has also narrated a story when accused had driven out Sarlabai while they had settled at Punkheda. He has narrated a story that Sarla told him of accused having inflicted an injury by means of sickle and also by hitting her forehead against the wall. All this narration in chief examination is at the cost of improvement over Police statement. We are unable to gauge truthfulness or otherwise into these statements, but these improved stories certainly reflect psychology of father in law, who appears to carry some grudge against son in law. Although faint, a possibility can not be ruled out that father was in a position to tutor and could have tutored daughter. We are inclined to say so, because even if we accept the reason for the rift between husband and wife as has come out in the two recorded dying declarations, the same is as good a reason for suicide as for homicide. It is claimed by victim in the dying declarations that since prior to alleged incident, husband had started insisting for divorce. He expressed his desire to get married with an educated girl. The wife found herself cornered and unable to accede to his request, because the couple already had 3 children.