(A) The deceased Vandana was daughter of oneIndrabai w/o Baburao Misal resident of Bhakarwadi, Tq.Badnapur, District Jalna who is residing in Milindnagar,Osmanpura, Peer Bazar at Aurangabad since long.Deceasedwas married to one Balu Gajile of Nipani about 6 yearsback.She begot a son from said Balu.Said Balu marriedanother woman and deceased continued to live with hermother.Allthe accused were residing jointly in the house in theiragriculture land at village Waregaon.Accused were doingthe business brick kiln at the time of incident.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::accused No.1 and residing in the joint family of theaccused on 17/11/2007 at about 6.00 a.m. in the abovesaid house of accused she sustained 86% burn injuries.One Sominath Ramchandra Shejwal (husband of the defencewitness No.1 Meena) and accused No. 3 immediatelyadmitted the deceased in injured condition in the Ghatihospital at Aurangabad in the ward No. 22/23 of theburnt patients.The information of admitting thedeceased in the injured condition in the hospital wasgiven to the Police station, Phulambri, DistrictAurangabad on the same day i.e. on 17/11/2007 at 8.15p.m.and accordingly MLC No. 42 of 2007 was registered.Then Police Inspector Alsatwar (PW-8) of the said PoliceStation directed API Bagul (PW-10) to visit the spot ofincident and to prepare panchanama.Accordingly APIBagul visited the spot of incident i.e. house of theaccused and prepared panchanama of spot with map as perExhibit 75 and some articles like burnt pieces ofclothes, match stick and drops of kerosene etc. were ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 5 ) criappl221.14.odtseized from the spot of incident under the samepanchnama.So also, stick was seized from the house ofaccused.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::(C) On the same day i.e. on 17/11/2007 PHC Pise(PW-3) went to Ghati hospital with letter Exhibit 37addressed to the Medical Officer of the said hospital,informing the Medical Officer that he has to recordstatement of deceased and requested the Medical Officerto examine the deceased who was admitted in injuredcondition and to state whether she was in a position togive statement.Thereupon, PHC Pise recorded dyingdeclaration Exhibit 38 after 1.45 p.m. on 17/11/2007stating that the deceased performed Gandharva marriage ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 6 ) criappl221.14.odtprior to one and half months of the incident with theaccused No. 1 and since the marriage all the accusedwere harassing her and saying her to bring Rs.10,000/-from her parents for brick kiln.Thereupon the deceasedwas saying them that her parents are poor and from wherethey would bring such amount and she was convincingthem.But all the accused were harassing her byassaulting her.When she was going to her parents at thetime of festival she used to tell them about saidharassment to her by the accused.But her parents weresending her to her in-laws house after convincing her.It is stated that on 16/11/2007 in the night all theaccused beat her by fist and kick blows and stick sayingher that she did not bring money for brick kiln.On17/11/2007 at about 6.00 a.m. her father-in-law andmother-in-law caught hold her and her husband pouredkerosene on her person and set her on fire by lightingthe match stick and thus attempted to commit her murder.It is stated that she sustained burns to her hands,stomach and face and her entire body is burnt.It is ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 7 ) criappl221.14.odtstated that her mother-in-law and one Sominath Shejwalhave admitted her in the hospital and that action betaken against all the accused.The said dyingdeclaration Exhibit 38 was sent to Police Station,Phulambri and crime No. 148 of 2007 was registered on17/11/2007 against the accused for the offencespunishable under Sections 307, 498-A and 323 read withSection 34 of the IPC and the PHC Pise gave letterExhibit 39 to Tahasildar, Aurangabad to record dyingdeclaration of the deceased.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::(D) After receiving the letter Exhibit 39Tahasildar, Aurangabad asked Naib Tahasildar Nikam (PW-(D) After receiving the letter Exhibit 394) from Phulambri to record dying declaration of thedeceased.Naib Tahasildar Nikam accordingly went toGhati hospital, Aurangabad at about 4.00 p.m. on17/11/2007 and no doctor was present.He recorded dyingdeclaration Exhibit 43 of the deceased between 4.25 p.m.to 5.20 p.m. stating that she performed second Gandharvamarriage with accused No.1 in the fifth month.She hadno menstruation and therefore, her husband suspected ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 8 ) criappl221.14.odther.All the accused said her to bring Rs. 10,000/- fromher parental house, she said that her parents could notgive that amount as they are doing soil work.Therefore,they started harassing her.On 16/11/2007 she wasassaulted in the night.On 17/11/2007 in the morning hermother-in-law and father-in-law caught hold her handsand legs and her husband poured kerosene on her personand then lighted the match stick and therefore, shesustained burns.She made shouts as she was burnt, butnobody came to her help as their house is isolated.However one Sominath who was labour on brick kiln pouredwater on her person and her mother-in-law admitted herin Ghati hospital at about 8.00 a.m.(E) While the deceased was admitted in Ghatihospital on 17/11/2007 her brother Charandas (PW-1), hersister Tulsabai Gautam Shejwal (PW-2) and Gautam SampatShejwal (PW-5) husband of PW-2 went in the Ghatihospital after knowing that the deceased suffered burnsand that she is admitted in the hospital, they met herand the deceased disclosed to them about involvement of ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 9 ) criappl221.14.odtthe accused in sustaining burns to her as alleged by theprosecution.Their statements were recorded duringinvestigation by PI Alsatwar (PW-8).He was informed at about 9.00 a.m. by a boyfrom their lane that deceased got burnt.Therefore, hewent to Ghati Hospital at Aurangabad."498-A.....Explanation- For the purpose of this section, "cruelty" means-(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 58 ) criappl221.14.odt failure by her or any person related to her to meet such demand."::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::The evidence of PW-1 brotherof the deceased is that deceased resided at the house ofaccused for about one month after marriage and thenaccused No. 1 reached her to their house for Nagpanchamifestival.Accused No. 1 did not come back to take thedeceased.Accused No. 2 father-in-law of deceasedwent to Jategaon and took the deceased with him to hishouse before two days of the incident.PW-1 has furtherdeposed that on the day of incident when the deceasedwas admitted in injured condition in the hospital shedisclosed to him that accused No.1 was denying that shewas pregnant from him as she had no menstruation andthat an amount of Rs.10,000/- was demanded by the ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 59 ) criappl221.14.odtaccused for brick kiln.In the cross-examination hedenied that the deceased did not disclose to him asabove.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::The evidence of PW-2 Tulsabai who is admittedlysister of the deceased is that after marriage deceasedresided at her house for about one month.After aboutthree months of marriage of deceased, marriage of herdaughter (daughter of witness) was performed at Jategaonand at that time deceased and her mother came toJategaon to attend said marriage.After 15 days of thesaid marriage accused No.2 came to her house to take thedeceased.Deceased had informed her that accused No.1used to beat to her.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::referred to as the accused Nos. 1 to 3 have challengedthe judgment and order dated 20/03/2014 passed by theSessions Judge, Aurangabad in Sessions Case No. 82 of2008 thereby convicting and sentencing each of them tosuffer rigorous imprisonment for one year and to pay afine of Rs. 500/-, in default to suffer rigorousimprisonment for 15 days for the offence punishableunder Section 498-A read with Section 34 of the IndianPenal Code (hereinafter referred to as the IPC) andfurther convicting and sentencing each of them to sufferimprisonment for life and to pay a fine of Rs. 500/-, indefault to suffer simple imprisonment for one month forthe offence punishable under Section 302 read withSection 34 of the IPC.The sentences of imprisonmentwere directed to run concurrently.Muddemal propertybeing valueless was ordered to be destroyed after theappeal period is over.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::( 3 ) criappl221.14.odt3. Facts leading to this appeal as revealed fromthe case papers are as under:-While the deceasedwas taking treatment in the hospital she scummed toinjuries on 23/11/2007 in the night.Accordingly, PIAlsatwar prepared inquest panchanama.After her deathoffence under Section 302 of the IPC was added in thecrime registered against the accused.All accused werearrested on 17/11/2007 immediately after the crime wasregistered against them and they were released on bail.The investigating officer recorded statements of otherwitnesses.He also sent articles seized from the spot ofincident to the Chemical Analyzer and collected reportof the Chemical Analyzer.After completion of theinvestigation charge-sheet was submitted in the Court ofJMFC, Phulambri, who committed the case to the SessionsCourt at Aurangabad for trial.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::(F) The learned Additional Sessions Judge,Aurangabad framed charge against the accused for theoffences punishable under Section 302 and 498-A read ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 10 ) criappl221.14.odtwith Section 34 of the IPC.Accused pleaded not guiltyto the charge and claimed to be tried.Their defence isthat death of the deceased is accidental.Theprosecution has examined in all 10 witnesses.Accusedhave examined one witness Meena Shejul (DW-1) indefence.After considering the evidence adduced by theprosecution and the defence the learned Sessions Judgeheld all the accused guilty for the offences punishableunder Sections 302 and 498-A read with Section 34 of theIPC and accordingly sentenced them for the said offencesas said earlier by the impugned judgment and order andtherefore this appeal.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::(G) Accused No. 1 is in jail and accused No. 3 anddeceased accused No. 2 were released on bail.Mr. Kulkarni, learned advocate for theappellants/accused Nos. 1 and 3 submitted that tosupport the conviction of the accused the prosecutionhas relied upon two written dying declarations i.e.Exhibit 38 recorded by PHC Pise (PW-3) in presence of ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 11 ) criappl221.14.odtthe Medical Officer Bhushan Ubhale (PW-9) on 17/11/2007and Exhibit 43 recorded by Naib Tahasildar Subhash Nikam(PW-4) on the same day between 4.25 p.m. to 5.20 p.m.There was no endorsement on both the dying declarationsthat the deceased was in a fit state of mind to make thestatement at the time of recording both the dyingdeclarations.Admittedly Exhibit 43 dying declarationwas not recorded in presence of any doctor.Therefore,according to learned advocate when both these dyingdeclarations were recorded the deceased was not in aposition to make statement due to 86% burns suffered byher as admitted by Dr. Sharad Kuchewar (PW-7) and 90%burns as stated by Medical officer Bhushan Ubhale (PW-::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::9).State ofMaharashtra, 2008(4), Mh.L.J. (Cri.)474, in the saidcase as observed in paragraph No. 7 following twoquestions arose for determination and they are as under:::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::"(i) Whether presumption under section 80 of Indian Evidence Act can be drawn in respect of a dying declaration recorded by a Magistrate without proof as to the cause of death of the dying person or as to in all the circumstances of the transaction which resulted in his death and particularly in respect of the name or description of/and act of the accused/offender in committing the offence of murder?declaration to depose before the trial Court about the name and act of the accused which resulted into the murder, in the words spoken up by the dying man?"::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::Having gone through the evidence on record, we find that the prosecution has relied upon only one piece of evidence to prove the charge against the appellants and the same is dying declaration (Exh.23) of deceased Sunita Bhanse.There is no other evidence relied on by the prosecution in support of its case.In his substantive evidence before the Court, Wasudeo (P.W.4) deposed that after getting deceased Sunita examined from the medical officer he was satisfied that she was physically and mentally fit to give the statement, he recorded her dying declaration.Thereafter he read over the said dying declaration to the patient who admitted the same to be correctly written as per her say.Accordingly he made an endorsement and again requested the medical officer to examine the patient about her mental and physical condition.It is noteworthy that in his substantive evidence before the Court he did not depose a single word as to who were the offenders who had poured kerosene on her person and set her on fire and in what manner.The witness is blissfully silent about the same and the prosecution preferred to rely upon the document of dying declaration which was exhibited.We have held by answering both the questions in this judgment, that the document of ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 14 ) criappl221.14.odt dying declaration cannot be presumed to be correct under section 80 of Evidence Act, unless proved according to law.This is particularly so because no presumption under section 80 is available in respect of the dying declaration.Since Wasudeo (P.W.4) did not depose a word about the name and the role of the appellants as told to him by the deceased Sunita, in view of the statement of law recorded by us in the foregoing part of the judgment, we hold that the prosecution failed to prove its case and did not discharge the initial burden of proof required to be discharged in a criminal case.For this reason therefore we reject the sole piece of evidence in the form of dying declaration (Ex.23) relied upon by the prosecution.There is no other evidence and consequently the finding of the trial Court about conviction on the basis of dying declaration will have to be reversed.Thus Criminal Appeal No. 103/03 will have to be allowed."::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::The above said decision dated 30/06/2008 waschallenged before the Apex Court in Criminal Appeal No.Mr. Kulkarni, learned advocate for the accusedfurther submitted that there is no endorsement on dyingdeclaration Exhibit 43 that the said dying declaration ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 15 ) criappl221.14.odtwas read over to the deceased by PW-4 and that sheadmitted the same to be correct and therefore, accordingto learned advocate the said dying declaration cannot besaid to be voluntary statement of the deceased.State of Maharashtra, 2002(2) Mh.L.J.3, wherein it was held that prosecution has to bring onrecord that the deceased had heard the statementrecorded by the Executive Magistrate and she admitted itto be correct.This is not a mere formality but anessential part while recording the dying declaration.A dyingdeclaration cannot be rejected merely because same isnot read over to declarant who admitted that same hasbeen correctly recorded.However, it can be one of the ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 16 ) criappl221.14.odtfactors if it assumes significance in facts andcircumstances of case.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::Mr. Kulkarni, learned advocate for the accusedsubmitted that the contents of both written dyingdeclarations Exhibit 38 and 43 were not put to theaccused in their statements under Section 313 of theCriminal Procedure Code and therefore, as theincriminating material/circumstances in both the writtendying declarations were not put to the accused in theexamination under Section 313 of Criminal Procedure Codea serious prejudice has been caused to the accused andno opportunity was given to them to explain theincriminating circumstances appearing against them inthese two written dying declarations and hence both thedying declarations cannot be taken into consideration toconvict the accused.The State of Maharashtra, 2011 ALL MR (Cri)3536 (F.B.) the learned advocate submitted that if theaccused succeeds in showing prejudice caused to him dueto omission to put any particular circumstances toaccused under Section 313, the appellate Court canafford an opportunity to the prosecution to make up thelapse and avoid miscarriage of justice.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::Mr. Kulkarni, learned advocate for the accusedsubmitted that dying declarations Exhibit 38 and 43 arenot consistent.Therefore, in all the abovecircumstances they are not voluntary statements of thedeceased and they are not truthful and therefore they ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 18 ) criappl221.14.odtcannot be considered to convict the accused and theyhave to be excluded from consideration.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::Mr. Kulkarni, learned advocate submitted thatallegedly while the deceased was admitted in injuredcondition in the Ghati hospital on 17/11/2007 she madeoral dying declarations to her brother (PW-1), hersister (PW-2) and PW-5 her brother-in-law and husband ofPW-2 regarding involvement of all the accused.Accordingto learned advocate there is no material to show thatwhen the deceased made oral dying declaration to thesewitnesses and there is no material to show that at therelevant time deceased was in a fit state of mind tomake statement to these witnesses.Therefore and asthere is no consistency in the evidence of these threewitnesses regarding oral dying declaration made to themby the deceased, according to learned advocate theevidence of these interested witnesses is not believableand therefore, oral dying declarations made to thesethree witnesses who are close relatives of the deceasedcannot be made basis to convict the accused when there ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 19 ) criappl221.14.odtis no evidence to show presence of the accused at thespot of incident and when the prosecution has notexamined Sominath Shejwal who had put off the fire ofdeceased by pouring water on her person and admitted herin the hospital.It is submitted that the accused havebrought on record the possibility of accidental death ofthe deceased through the evidence of DW-1 Meena who iswife of Sominath Shejwal.Thus, learned advocate has prayed to setaside the impugned conviction and sentence recordedagainst the appellants/accused Nos. 1 and 3 by allowingthe appeal.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::( 20 ) criappl221.14.odtMrs. Choudhary, learned APP, on the other handsubmitted that prosecution case is based on two writtendying declarations Exhibits 38 and 43 and oral dyingdeclarations made to PWs-1, 2 and 5 and there is noreason to reject written as well as oral dyingdeclarations.State by ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 21 ) criappl221.14.odtInspector of Police, Tamil Nadu, 2005 AIR(SC) 1473 ,learned APP submitted that there is no material to showthat dying declarations are result of product ofimagination, tutoring or prompting.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::Learned APP further submitted that questionNos. 14, 15, 24, 25, 26, 39, 40, 41 were put to theaccused about oral dying declarations made to PWs 1, 2and 5, question Nos.43 to 48 about written dyingdeclaration Exhibit 38 and question Nos. 57 to 62regarding dying declaration Exhibit 43 were put to theaccused at the time of their examination under Section313 of the Criminal Procedure Code and therefore, noprejudice has been caused to the accused as submitted bythe learned advocate appearing for the accused.It issubmitted that therefore, decisions relied upon by thelearned advocate appearing for the accused are notapplicable to the present case.Learned APP thussubmitting that conviction and sentence recorded againstthe accused is proper claimed to dismiss the appeal.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::( 22 ) criappl221.14.odtWe have carefully considered the submissionsmade by the learned advocate appearing for theappellants/accused and learned APP for therespondent/State.With their assistance we have perusedthe evidence adduced by the prosecution and the accusedand we have gone through the impugned judgment andorder.There is no dispute that the deceased Vandanaperformed Gandharva marriage with accused No.1 fivemonths before the incident on 17/11/2007 and on the saiddate at 6.00 a.m. in the house of accused she sustained86% burn injuries.Thereafter, Sominath Shejwal andaccused No. 3 admitted her in Ghati hospital atAurangabad at about 8.15 a.m. and while taking treatmentshe scummed to injuries on 23/11/007 at 14.45 hours inthe hospital.As per evidence of Dr. Sharad Kuchewar(PW-7) who conducted postmortem examination and issuedpostmortem report Exhibit 63 cause of the death of thedeceased was, "Septicemic Shock due to Burns".Thus, it ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 23 ) criappl221.14.odtis clear that death of the deceased is not natural.Therefore, looking to the defence of the accused andcase of the prosecution it is to be seen whether deathof the deceased is homicidal, suicidal or accidental andif the death of the deceased is homicidal whether theaccused are responsible for causing burns to thedeceased and to her death.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::For proving that death of the deceased ishomicidal, the accused are responsible to cause burns toher and responsible to her death the prosecution hasrelied upon the following circumstances/ evidence:(i) Written dying declaration Exhibit 38 recordedby PHC Pise (PW-3) in presence of Medical OfficerBhushan Ubhale (PW-9).(ii) Written dying declaration Exhibit 43 recordedby Naib Tahasildar- Subhash Nikam (PW-4).::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::Phulambri Police Station, in presence of Bhushan Ubhale(PW-9), on 17/11/2007 after 12 noon.According to PHCPise on the said date MLC report about deceased Vandanawas received in police station.Entry of that report wastaken and he was asked to enquire into that matter.Hestated that he went to Ghati Hospital at Aurangabad onthat day and gave letter Exhibit 37 to the MedicalOfficer to opine whether injured Vandana was in aposition to give statement.The Medical Officer examinedher and gave endorsement on Exhibit 37-letter that shewas in a fit condition to give statement.Thereafter, healso enquired with her and she was able to speak.Further he deposed that he asked her as to how she got ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 25 ) criappl221.14.odtburnt.She gave the details of the incident in which shewas burnt.He reduced the same into writing.He readover the contents thereof to her.In thecross-examination he denied that Vandana was not in aposition to speak as she was given medicines through IV.He also denied that Medical Officer gave endorsementabout condition of deceased on letter Exhibit 37 in hiscabin without examining the deceased.Further he deniedthat he prepared dying declaration/statement Exhibit 38as per narration of sister of deceased and that he isdeposing false.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::He went to burnt patient Vandanaat 1.15 to 1.45 p.m. He checked pulse, blood pressure ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 26 ) criappl221.14.odtand consciousness level of burnt patient Vandana andfound that she was in a fit state of mind to givestatement and accordingly he gave endorsement Exhibit 73on letter Exhibit 37 addressed to the Medical Officer ofthe hospital.He also stated that he was present tillthe completion of recording of statement of Vandana.Inthe cross-examination he has denied that deceasedVandana was not in a fit state of mind to give statementas she had 90% burns and that he is deposing false.Headmitted that there is no endorsement on dyingdeclaration Exhibit 38 that he was present at the timeof recording the said dying declaration.Thus, nothingis found in favour of the accused in the cross-examination of Medical Officer Bhushan Ubhale.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::On the basis of evidence of PHC Pise (PW 3) andBhushan Ubhale (PW 9) an inference can be drawn thatwhen PHC Pise recorded dying declaration Exhibit 38deceased was in a position to make statement.This factis also clear from Exhibit 73 endorsement made onExhibit 37 letter addressed to the Medical Officer, ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 27 ) criappl221.14.odtGhati Hospital.Of course, there is no endorsement madeon dying declaration Exhibit 38 that deceased Vanandawas in a fit state of mind to give statement, but whensuch endorsement is made on letter Exhibit 37 and whenboth Pws-3 and 9 have stated that the deceased was in afit state of mind to make statement at the time of dyingdeclaration Exhibit 38 mere absence of endorsement ondying declaration Exhibit 38 of the Medical Officerabout the condition of the deceased is not sufficient tostate that she was not in a fit condition to makestatement.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::The second dying declaration is Exhibit 43recorded by Naib Tahasildar Subhash Nikam (PW-4) on17/11/2007 between 4.25 p.m. to 5.20 p.m. He has statedthat on 17/11/2007 he was working as a Naib Tahasildarin Tahasil office of Phulambri.Police had given letterExhibit 42 to the Tahasildar, Phulambri on 17/11/2007 torecord dying declaration of deceased who was admitted inGhati Hospital at Aurangabad.After receiving said ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 28 ) criappl221.14.odtletter he went to said government hospital on the sameday at about 4.00 p.m. and went to the ward of burntpatient where deceased Vandana was admitted.The doctorwas not present there.He waited for doctor for about 10to 15 minutes, however doctor did not come.He askedquestions to deceased Vandana with reference to her nameand address.She gave answers to those questions.Heensured himself that she was in a condition to givestatement.Then he asked her how she was burnt and shegave details of incident in which she was burnt.Hereduced that narration into writing.He read overcontents thereof to her.She admitted correctnessthereof.He obtained her right hand thumb impression onthe statement and he also counter singed the saidstatement.Said statement/dying declaration Exhibit 43is as per her narration.He stated that ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 29 ) criappl221.14.odtdeceased Vandana was extensionally burnt, but deniedthat she was not in a position to speak.He also deniedthat he prepared dying declaration Exhibit 43 as per thenarration of relatives of deceased and that he isdeposing false.The second dying declaration is Exhibit 43::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::There appears no dispute that dying declarationExhibit 43 as per the case of the prosecution wasrecorded between 4.25 p.m. to 5.20 p.m. on 17/11/2007.From the above referred evidence of PW-4 Naib TahasildarNikam it is clear that when he recorded dyingdeclaration the deceased was not examined by the Medicalofficer to know about the condition of the deceased tomake statement.According to Naib Tahasildar Nikam toensure that deceased was in a condition to givestatement.He asked some questions to deceased withreference to her name and address and she answered tothose questions.But he has not stated about the exactquestions asked by him to the deceased and about theanswers given by the deceased to those questions.In ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 30 ) criappl221.14.odtfact, he should have stated about all those questionsand the answers given by the deceased.There is nodispute that the deceased sustained 86% burns in themorning on 17/11/2007 at about 6.00 a.m. at the house ofaccused and then she was admitted in the Ghati Hospitalat Aurangabad which is about 25 k.m. from Phulambri.Considering the percentage and nature of burns sustainedby the deceased in the morning on 17/11/2007 and thefact that the second dying declaration was recordedbetween 4.25 to 5.20 p.m. on that day it was necessaryfor Naib Tahasildar Nikam to seek opinion of doctorabout the condition of the deceased at the time ofrecording said dying declaration.So also, theprosecution should have produced on record the casepapers showing the nature of treatment which was beinggiven to the deceased on that day and her condition atthe time of recording second dying declaration, but theprosecution has not produced case papers about thetreatment of the deceased.It is true that as referredearlier Naib Tahasildar Nikam asked some questions to ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 31 ) criappl221.14.odtensure that the deceased was in a condition to givestatement, but as mentioned earlier he has not statedabout the questions asked to her and the answers givenby her.The process of bloodpoisoning may start within five minutes or within onehour once the patient sustained 90% burn injuries.Soalso, he stated that blood poisoning may start withinone hour in case of 90% burns and normal understandingof 90% burnt patient may disappear.So also, he hasstated that within 1 or 2 hours mental condition of 90%burnt patient may change.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::Now it is to be seen whether the prosecutionhas proved the contents of written dying declarationsExhibits 38 and 43 and that these dying declarations arevoluntary, truthful and reliable.As referred earlierPHC Pise (PW-3) who recorded dying declaration Exhibit38 and Naib Tahasildar Nikam (PW-4) who recorded dyingdeclaration Exhibit 43 have simply stated that thedeceased had given the details of incident in which shewas burnt and they had reduced those details intowriting.They have further stated that these dyingdeclarations were read over to the deceased and sheadmitted that the contents thereof were correct.Butboth PWs-3 and 4 have not stated about the contents ofdying declarations Exhibits 38 and 43 respectivelyrecorded by them.In fact, they should have stated about ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 33 ) criappl221.14.odtthe contents of respective dying declarations recordedby them.In the case of Deorao s/o Sonbaji Bhalerao andanother (Supra), the Division Bench of this Court hasheld that mere production of dying declaration and thestatement that its contents are correct, would not provedying declaration and the witness who has recorded thedying declaration has to depose as to the contents ofdying declaration.Admittedly this has not been done inthe present case.Therefore, both the dying declarationsExhibits 38 and 43 have not been proved in accordancewith the law laid down by this Court in Deorao's case(Supra) which decision has been confirmed by the Hon'bleApex Court as per order dated 01/09/2015 in CriminalAppeal No(s).126/2011 as the appeal against decision inDeorao's case was dismissed, and therefore, dyingdeclarations Exhibits 38 and 43 have to be excluded fromconsideration.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::On perusal of the statements under Section313 of the Criminal Procedure Code of all the accused itappears that question Nos. 46, 47 and 48 who were askedto the accused on the dying declaration Exhibit 38recorded by PHC Pise (PW-3) and question No. 62 wasasked to the accused on dying declaration Exhibit 43recorded by Naib Tahasildar Nikam (PW-4).Thequestion Nos. 46, 47, 48, 62 and 79 with answers are asunder:-::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::"Q.46 It has further come in his evidence that he made inquiry with Vandana and she was able to speak and he recorded statement of Vandana.What you have to say about it?::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::he asked Vandana about burn injuries and she gave details of incident as to how she sustained burn injuries.What you have to say about it?Vandana into writing and thereafter read over the contents thereof to Vandana and she admitted correctness of the said statement and thereafter he obtained her right hand thumb mark on the said statement and also put his own signature on the said statement and said statement is at Exh. 38 and contents of the said statement are true and correct as stated by Vandana.What you have to say about it?he asked Vandana as to how she sustained burn injuries and she gave details of the incident in which she sustained burn injuries and said information was reduced into writing and it was read over to Vandana and she admitted correctness thereof and thereafter he obtained right hand thumb mark of Vandana on the said statement and also his own signature and the said statement is at Exh. 43 and it was recorded correctly as per the say of Vandana.What you have to say about it?::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::What you have to say about it?From the perusal of the above referred questionNos. 46, 47, 48, 62 and 79 and answers given by theaccused to the said questions it is clear that theaccused have stated that the dying declarations Exhibits38 and 43 are false.Thus,it is clear from question Nos. 48 and 62 referred toabove that contents of dying declarations Exhibits 38and 43 were not specifically put to the accused in thestatement under Section 313 of the Criminal ProcedureCode and as such no opportunity was given to the accusedto explain the circumstances appearing against them inboth these dying declarations.However, the learnedSessions Judge has used the contents of both the dyingdeclarations Exhibits 38 and 43 against the accused forholding the accused guilty for the offences alleged ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 37 ) criappl221.14.odtagainst them as observed in paragraph Nos. 21, 22, 23and 24 of the judgment.But when the contents of dyingdeclarations Exhibits 38 and 43 and the circumstancesappearing in the said dying declarations against theaccused were not put to them to give explanation boththese dying declarations cannot be taken intoconsideration in view of the law laid down by the ApexCourt in the case of Raj Kumar Singh alias Raju AliasBatya (Supra).Therefore, we hold that both the dyingdeclarations cannot be used against the accused and theyhave to be excluded from consideration.As a result, wehold that the prosecution has not proved that both thedying declarations are voluntary, reliable andtrustworthy statements of the deceased.Therefore, thedying declarations Exhibits 38 and 43 are of no help tothe prosecution to connect the accused with the offencesalleged against them.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::Now coming to the oral dying declarations,allegedly made by the deceased to PW-1, PW-2 and PW-5,the evidence of Charandas Baburao Misal (PW-1) brother ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 38 ) criappl221.14.odtof the deceased about oral dying declaration is that onthe day of incident he was on his work at Chhawani,Aurangabad.He reached in theburns ward at about 10.00 a.m. He saw that Vandana hadgot burnt.He asked her how she got burnt.She informedhim that accused Nos. 2 and 3 tied her hands and legs,while accused No.1 poured kerosene on her person and sether on fire.Vandana was pregnant at that time.She alsoinformed that accused No. 1 was denying that she waspregnant from him as she had no menstruation.Shefurther informed that the amount of Rs.10,000/- wasdemanded by the accused for brick kiln.In the cross-examination he had denied that he was not allowed to goinside the burns ward after he went to Ghati Hospital at10.00 a.m. He also denied that deceased Vandana was notin a position to talk at all.He denied that deceasedVandana did not at all inform him that on the day ofincident accused Nos. 2 and 3 tied her hands and legs ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 39 ) criappl221.14.odtand accused No.1 poured kerosene on her person and sether on fire.So also, he denied that Vandana did nottell him that the accused were demanding Rs.10,000/- andthat accused No. 1 was denying the paternity of thefeatus in her womb.So also, he deposed that, he statedbefore police that deceased had told him that accusedNos.2 and 3 tied her hands and legs and that she waspregnant on the day of incident and accused No. 1 deniedsaid pregnancy from him.These omissions in hisstatement before police have been proved by PW-8 PIAlsatwar the Investigating Officer.Therefore, theseomissions being material omissions in the statementbefore police of PW-1 and as PW-1 is brother of thedeceased his evidence that the deceased informed himthat accused Nos. 2 and 3 tied her hands and legs, thedeceased told him that she was pregnant at the time ofincident and accused No. 1 denied that said pregnancyfrom him is not believable and therefore, it is doubtfulwhether accused Nos. 2 and 3 were really involved in theincident and they had played role as deposed by this ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 40 ) criappl221.14.odtwitness in causing burns to the deceased.However,considering the evidence of PW-1 that he went tohospital at 10.00 a.m. and denial of the suggestion byhim that the deceased was not in a position to talk atall an inference can be drawn on the basis of evidenceof PW-1 that the deceased was in a position to talk whenhe met her and she disclosed to him in the hospital thataccused No. 1 poured kerosene on her person and set heron fire.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::The second witness to whom oral dyingdeclaration was made by the deceased is Tulsabai GautamShejwal (PW-2) married sister of the deceased.Herevidence on oral dying declaration is that after about 3days of the departure of Vandana from her house, herbrother-in-law informed on phone that Vandana wasadmitted in Ghati hospital at Aurangabad.She thereforewent to Ghati hospital at Aurangabad.Vandana wasadmitted there.She had sustained burns.On being askedby her Vandana told that accused Nos. 2 and 3 caughthold of her hands and legs, while accused No. 1 poured ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 41 ) criappl221.14.odtkerosene on her person and set her on fire.According toher Vandana informed that accused were taking suspicionagainst her.In the cross-examination she denied she wasnot allowed to go to meet Vandana in the ward in whichshe was admitted.She denied that the deceased Vandanawas not in a position to talk.She admitted that it wasnot possible to understand as to what she was talking.She has denied that Vandanda did not tell her thataccused Nos. 2 and 3 caught hold of her hands and legs,while accused No. 1 poured kerosene on her person andset her on fire.She denied that deceased Vandana caughtfire accidentally when she was cooking and that she isdeposing false to harass the accused on the say of herbrother.This witness has not specifically stated as towhen she went to Ghati hospital i.e. either in themorning or in the evening.It has come in the evidenceof PW-1 brother of this witness that this witness (PW-2)and her husband (PW-5) had come to the Ghati hospital onthe day of incident in the evening.Thus, it appearsthat this witness went to Ghati hospital in the evening.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::( 42 ) criappl221.14.odtAs observed earlier she denied that deceased Vandana wasnot in a position to talk.However, she admitted that itwas not possible to understand as to what she wastalking.As mentioned earlier case papers regardingtreatment of the deceased on 17/11/2007 and showing hercondition in the evening are not produced byprosecution.In fact, the said papers were required tobe produced by the prosecution to show that the deceasedwas in a position to talk.In the absence of said paperswhen this witness (PW-2) had admitted that it was notpossible to understand as to what she (deceased) wastalking, shows that the deceased was not in a positionto talk.So also, as referred earlier it has come in theevidence of PW-4 Naib Tahasildar who recorded dyingdeclaration Exhibit 43 on 17/11/2007 between 4.25 to5.20 p.m. that there was no doctor in the hospital.Therefore and when PW-2 has not specifically stated thatdeceased was in a condition to speak and stated that itwas difficult to understand what deceased was talking itis doubtful whether deceased was in a position to make ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 43 ) criappl221.14.odtstatement to this witness.Therefore, and as there isinconsistency in the evidence of oral dying declarationmade to this witness and her brother (PW-1) as regardsthe role played by accused Nos. 2 and 3 because PW-1states that deceased had informed him that accused Nos.2 and 3 tied her hands and legs whereas this witnesssays that accused Nos. 2 and 3 had caught hold her handsand legs the evidence of this witness is not sufficientto infer that really deceased made oral dyingdeclaration to this witness about the role played by theaccused referred to above.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::According to himdeceased was his sister-in-law.As regards the oraldying declaration in paragraph No. 3 of his depositionhe deposed that the mother of deceased Vandana, hisfather, his wife and he went to Ghati hospital,Aurangabad to see Vandana.She was admitted in the burnsward.On being asked by them, Vandana informed them thataccused Nos. 2 and 3 caught hold of her person while ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 44 ) criappl221.14.odtaccused No.1 set her on fire.She further informed thatthe accused were raising suspicion against her as shedid not get menstruation.In the cross-examination hehas denied that deceased Vanadna did not inform themthat she was caught hold by accused Nos. 2 and 3 and wasset on fire by accused No.1 and further denied that shedid not inform them that the accused were raisingsuspicion against her as she had no menstruation.Hehas denied that deceased Vandana was not able to speakdue to burn injuries.As referred earlier PW-2 wife ofthis witness with whom this witness had gone in theCivil Hospital admitted that it was not possible tounderstand as to what she (deceased) was talking.When therewas no doctor as deposed by PW-4 Naib Tahasildar andwhen admittedly no papers regarding treatment of thedeceased at the relevant time are produced and when theevidence of this witness regarding role attributed to ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 45 ) criappl221.14.odtaccused Nos. 2 and 3 is not consistent with the evidenceof PWs-1 and 2 and when he has not stated consistentlywith the evidence of PWs-1 and 2 that the deceased toldhim that the accused No.1 poured kerosene and then sether on fire his evidence about oral dying declarationmade to him by the deceased is not sufficient to statethat really at the relevant time deceased was in aposition to make statement and she disclosed to him thataccused Nos. 2 and 3 caught hold the deceased andaccused No. 1 set her on fire.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::Ithas referred the inconsistencies referred earlierbetween the oral dying declarations made to PWs-1, 2 andSo also, the learned Sessions Judge has referredomissions the statement before police of PWs 1, 2 and 5.But according to learned Sessions Judge due to saidinconsistencies at the most it can be said that theabove witnesses have deposed for the first time before ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 46 ) criappl221.14.odtthe Court about the omissions and their evidence cannotbe totally discarded and disbelieved only for thereasons that they have deposed in the Court some factswhich they did not state to the police.The learned SessionsJudge has not considered the aspect as to when thedeceased made oral dying declarations to these witnessesand whether the deceased was in a fit condition to makestatement them, and in fact the said aspect was requiredto be considered.It appears that PW-1 brother of thedeceased went in the hospital in the morning at about 10a.m. and PWs 2 and 5 went in the hospital in the eveningto meet the deceased and as referred earlier PW-2admitted in her cross-examination that it was notpossible to understand as to what she (deceased) was ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 47 ) criappl221.14.odttalking.All these inconsistencies in theevidence of PWs 1, 2 and 5 assume importance as they areclose relatives of the deceased.Therefore, onconsidering all these inconsistencies in their evidence ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 48 ) criappl221.14.odtit is doubtful whether the deceased made oral dyingdeclaration to these three witnesses implicating all theaccused and that the oral dying declarations made tothese witnesses are truthful and reliable.At the mostas observed earlier oral dying declaration made by thedeceased to her brother PW-1 attributing role to accusedNo.1 that he poured kerosene on her person and set heron fire is believable.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::Now coming to the circumstantial evidence, asregards the spot panchnama Exhibit 75 PW-10 API Bagulhas proved this panchanama.As per his evidence thehouse of the accused consists of four rooms, ota andchapper.Chapper is admeasuring 26½ x 8', one of therooms is admeasuring 13 x 14', two rooms are admeasuring13 x 9' each and they are adjacent to each other.Seenof offence is inside the chapper which is to thesouthern side.His evidence further shows that there aretwo rooms between chapper and western side room.Therewere two fire places (chool) in the said chapper.He ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 49 ) criappl221.14.odtalso admitted that plastic can was in the western sidefirst room of the farm house.It has come in hisevidence that they found kerosene spots in the easternside room.Thus,on considering the evidence of the Investigating OfficerAPI Bagul and the contents of panchnama with map Exhibit75 it is clear that behind the four rooms of house ofaccused there was a chapper of size mentioned earlierand in the said chapper the incident took place.Thepanchnama shows that at the time of panchnama theInvestigating Officer and panchas found red and pinkcolour designs saree in burnt condition and they weresticked to each other.So also, they found nylon sareein burnt condition in the chapper and said sarees weresmelling of kerosene.They also found that faint pinkcolour, petticoat sticked to the said sarees.They hadalso seen burnt pieces of red colour blouse and brokenneckless of black beads and said articles were seized ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 50 ) criappl221.14.odtunder said panchnama.All these circumstances noticed bythe Investigating Officer and the panchas in the chappershow that the incident took place in the chapper andkerosene was found on the above mentioned clothes of thedeceased.These circumstances thus corroborate theevidence of PW-1 that the deceased disclosed to him whenshe was admitted in the hospital, that on the date ofincident accused No. 1 poured kerosene on her person andset her on fire.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::The above referred clothes found on the spot ofincident i.e. in the chapper where the incident tookplace were seized by API Bagul (PW-10) and they weresent to the Chemical Analyzer with letter Exhibit 67 tothe Chemical Analyzer for analysis as deposed by PW-8 PIAlsatwar, for analysis and report.This letter Exhibit67 shows that above referred seized burnt clothes wereon the person of the complainant/deceased.Exhibit 68report of the Chemical Analyzer shows that the ChemicalAnalyzer in his analysis of Exhibit 1 partially burnt ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 51 ) criappl221.14.odtpink coloured petticoat, Exhibit 2 partially burntreddish and pink coloured saree sticked to each other,Exhibit 3 partially burnt reddish clothes pieces statedto be of blouse, Exhibit 4 a stained cotton swab andExhibit 5 an empty blue coloured plastic can of kerosenethe tests for the detection of kerosene residues on thesaid five Exhibits are positive.Therefore, it can besaid on the basis of report of Chemical Analyzer thatkerosene residues were found on all above five Exhibits/articles which were seized from the spot of incidenti.e. chapper behind the house of the accused where theincident had taken place.The finding of the keroseneresidues on clothes shows that kerosene was poured onthe person of the deceased when said clothes were on herperson.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::( 52 ) criappl221.14.odtAs referred earlier learned advocate for theaccused has submitted that the prosecution has notexamined Sominath Shejwal who had come to the spot ofincident immediately and put off the fire of thedeceased and admitted her in the hospital and therefore,as the prosecution has suppressed evidence of saidmaterial witness the evidence adduced by the prosecutionin the form of written and oral dying declarations isnot believable.Exhibit 66-MLC report which was given bythe hospital to the Phulambri Police Station immediatelyafter the deceased was admitted in injured condition inthe hospital on 17/11/2007 shows that Sominath Shejwaland accused No.3 mother-in-law of deceased had admittedthe deceased in injured condition in the hospital.Inthe said MLC the deceased alleged that all the accusedcaused burn injuries to her by pouring kerosene on herperson.So, it is not the case in the MLC that noallegation is made against the accused by deceased.Therefore, merely because the prosecution has notexamined Sominath Shejwal it cannot be said that the ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 53 ) criappl221.14.odtentire prosecution case is false or that it is notbelievable as argued by the learned advocate for theaccused.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::Defence of the accused is that death of thedeceased is accidental.They have examined MeenaSominath Shejul.Her evidence is that since 7 yearsprior to the incident she and her husband were workingin the brick kiln of the accused.They were residing atsome distance from the house of accused.Deceased wasstaying at Jategaon.She had come to house of accused 6days prior to the incident.About the incident shedeposed that incident took place at 6.00 a.m. Deceasedwas cooking food on fire place.She caught fire and cameto her.She proceeded alongwith her children to herhusband.Her husband poured water on the person ofdeceased.They removed saree on the person of thedeceased and put blanket on her person and she wasbrought in the hospital by auto rickshaw.She was in thehospital upto 6.00 p.m. Relatives of deceased came.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::( 54 ) criappl221.14.odtDeceased did not talk to anybody.She then went to herhouse at 6.00 p.m. In the cross-examination she admittedthat once she came outside the house after hearing hueand cry, all the accused were present there and shefurther admitted that her husband took the injured inthe hospital.She further admitted that father-in-lawand husband of the injured had not come to the hospitalwith them.She denied that she deposed false as per thesay of accused.There is nothing on record to show thatthis witness accompanied the deceased when the deceasedwas brought in hospital.MLC Exhibit 66 also shows thatonly husband of this witness and accused No. 3 mother-in-law the deceased had brought the deceased in thehospital.There is no suggestion to the witnessesexamined on behalf of the prosecution that they had seenthis witness in the hospital on 17/11/2007 with thedeceased.As observed earlier kerosene residues werefound on the burnt clothes of the deceased.So also,this witness was not in the house or chapper of theaccused when the incident took place and this witness ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 55 ) criappl221.14.odtclaims that after the deceased caught fire deceased cameto her.If thedeceased would have caught fire accidentally no kerosenewould have found on the clothes on her person.So also,the husband and father-in-law of the deceased who werepresent when allegedly this witness had gone to thehouse of the accused, would have accompanied thedeceased to admit her in the hospital, but they did notcome to the hospital with the deceased and only accusedNo.3 and husband of the defence witness had brought thedeceased in the hospital.From the evidence of this witness presence of accused atthe house at the material time is proved.The trialCourt has rightly not accepted the evidence of defencewitness.Thus, we do not accept the defence of theaccused.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::( 56 ) criappl221.14.odtFor the reasons discussed above on the basis ofevidence of PW-1 brother of the deceased to whom thedeceased made oral dying declaration on 17/11/2007 at 10a.m. in the Ghati Hospital immediately after theincident and circumstantial evidence i.e. panchnama ofspot Exhibit 75 and report of the Chemical AnalyzerExhibit 68 an inference can be drawn that the accusedNo.1 husband of the deceased poured kerosene on herperson and set her on fire and therefore, she sustained86% burns and as a result she died on 23/11/2007 at14.45 hours.Therefore, accused No.1 is responsible forcausing burn injuries to the deceased and ultimately tocause her death and his act of pouring kerosene on theperson of the deceased and setting her on fire amountsto culpable homicide amounting to murder.But theevidence adduced by the prosecution and referred toabove is not sufficient to state that accused in-laws ofthe deceased participated in the incident of sustainingburns to the deceased as alleged by the prosecution.Thus, we hold that death of the deceased is homicidal ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 57 ) criappl221.14.odtand accused No. 1 is responsible for her death.Therefore, the finding of the trial Court that theprosecution has proved offence under Section 302 of theIPC against accused Nos. 2 and 3 father-in-law andmother-in-law of deceased is not correct andsustainable.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::As regards the offence under Section 498-A ofthe IPC the prosecution has to prove that the accused infurtherance of their common intention caused crueltywithin the meaning of cruelty given under explanation Aand B of Section 498-A of the IPC which is as under:-Accused No. 2 informed them thatdeceased would be treated properly.She further deposed aboutoral dying declaration made to her by the deceased.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::The evidence of PW-5 Gautam Sampat Shejwal whois husband of PW-2 is that deceased resided at the houseof accused about one month after marriage.Thereafter,she resided at her maternal home for about 15 days.Thereafter she came to his house as there was marriageof his daughter, namely, Rekha.She resided at his housefor about 8 days after the marriage of Rekha.Thereafter, she went to her maternal home.Then afterabout 2-3 days deceased and her mother came to hishouse.The mother of the deceased informed him that theyshould go to the house of accused to reach deceased.Accordingly, he went to the house of accused withdeceased and her mother.Accused No. 1 refused to allowdeceased to reside at his house.He asked them toperform operation of deceased for appendix and thenbring her back to his house.They wanted to go to PoliceStation, Phulambri to lodge report against accused.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::( 61 ) criappl221.14.odtHowever, on the way the brother of the accused No.1,namely, Bhausaheb met them and requested them not to goto the police station.Therefore, they went to theirvillage.He also stated that alongwith his wife and hisfather he went to hospital where deceased was admittedafter the incident and deceased disclosed him thataccused were raising suspicion against her as she had nomenstruation.The omissions inhis statement before police in respect of the fact thataccused No. 2 had come to his house to take deceased,that the deceased was telling them that accused No. 1used to beat her and that the accused No.2 assured themthat the deceased would not be beaten and therefore,they sent deceased with him are proved by theInvestigating Officer PW-8 Police Inspector Alsatwar.Therefore, the evidence of this witness that the accusedNo.2 had come to his house to take deceased, that thedeceased was telling that accused No.1 used to beat herand that the accused No.2 assured that the deceased ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 62 ) criappl221.14.odtwould not be beaten is improvement while deposing beforethe Court and amounts to material omission in hisstatement before police and therefore said evidence isnot believable.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::On careful consideration of above referredevidence of PWs-1, 2 and 5, PWs 2 and 5 have not statedregarding demand of Rs.10,000/- by the accused from thedeceased for brick kiln.Their evidence regarding stayof deceased at her parental house and at the house ofPWs 2 and 5 for some days is not at all sufficient toinfer that they caused cruelty to the deceased in anymanner.As mentioned above there are material omissionsin the statements before police of PWs 2 and 5 that thedeceased told them that accused No. 1 beat her and thatthe accused No. 2 had taken the deceased with him at thehouse of accused on giving assurance that she would notbe beaten.Therefore, the above referred evidence of PWs1, 2 and 5 is not at all sufficient to infer that theaccused in furtherance of their common intention caused ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 63 ) criappl221.14.odtcruelty to the deceased punishable under Section 498-Aread with Section 34 of the IPC.Thus, we hold that thefinding recorded by the trial Court that the prosecutionhas proved offence under Section 498-A read with Section34 of the IPC against the accused is not correct andsustainable.We therefore, hold that prosecution hasfailed to prove said offence against the accused.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::For the foregoing reasons, we hold that theprosecution has proved offence under Section 302 of theIPC only against accused No. 1 and it has failed toprove said offence against accused No. 3 and offenceunder Section 498-A read with Section 34 of the IPCagainst all the accused.Therefore, conviction andsentence recorded against accused No. 3 for the offenceunder Section 302 read Section 34 of the IPC and againstaccused Nos. 1 and 3 for offence under Section 498-Aread with Section 34 of the IPC are liable to be setaside and they are entitled to be acquitted of the saidoffences by allowing the appeal partly.Thus, conviction ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 ::: ( 64 ) criappl221.14.odtand sentence recorded against the appellant/accused No.1for the offence under Section 302 of the IPC needs to beconfirmed.Therefore, in the result following order ispassed.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::(i) Appeal is partly allowed.(ii) The conviction and sentence recorded against theaccused No. 1 Dadarao Shripat Thorat for the offencepunishable under Section 498-A read with Section 34 ofthe IPC and against accused No. 3 Yamunabai ShripatThorat for the offences punishable under Sections 498-Aand 302 read with Section 34 of the IPC as per thejudgment and order dated 20/03/2014 passed by theSessions Judge, Aurangabad in Sessions Case No. 82/2008are hereby quashed and set aside.(iii) Accused No. 1 Dadaro Thorat is acquitted of theoffence under Section 498-A read with Section 34 of theIPC and accused No. 3 Yamunabai is acquitted of theoffences punishable under Sections 498-A and 302 readwith Section 34 of the IPC.::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::( 65 ) criappl221.14.odt(iv) Fine, if paid, by accused Nos. 1 and 3 for theaforesaid offences as per the impugned judgment shall berefunded to them.Accused No. 3 Yamunabai shall furnishpersonal bond and surety bond of Rs.15,000/- before theSessions Judge as per Section 437-A of the CriminalProcedure Code within two weeks from today.(ix) Record and proceedings with copy of judgment besent to the trial Court for necessary compliance.[S.M. GAVHANE, J.] [T. V. NALAWADE, J.]ssp/Dec.19/criappl221.14.odt ::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::::: Uploaded on - 03/03/2020 ::: Downloaded on - 04/03/2020 09:54:04 :::

Cited provisions: Section 34 in The Indian Penal Code; Section 302 in The Indian Penal Code; Section 498A in The Indian Penal Code