They set her on fire by using kerosene and matchstick.3] The facts, that are required to be stated for the purpose of this judgment, are as under.She was residing with her minor children at her father's house since prior to two years because she had lost her husband.On 7.2.2011 Nakusha was taken to hospital in injured condition.5] PW 7-Noor Mohammad stated that on 7.2.2011 from 8.00 p.m. he was on duty of Civil Hospital and that Dr. Pathak, the treating doctor, informed him at about 6.00 a.m. on the next morning that victim was admitted to hospital in burnt condition.He then intimated this fact to Shri Bhaskar Bhos, Special Judicial Magistrate by making a phone call at 7.00 a.m. Shri Bhos assured him that he would come to hospital by about 9.00 a.m. As a formality he even sent a letter in writing to Shri Bhos.He stated that Shri Bhos came to hospital but the treating doctor informed him in writing that the patient was unconscious.He stated that Shri Bhos informed him about it.Shri Bhos assured him that he would visit the patient in the evening.7] PW 10-Shri Bhos then stated that in the evening he received one more letter from the police.So he went to Civil Hospital.He went to burn ward where he met Smt. Dr. Sardesai.He stated that Smt.Sardesai made a remark that the patient was conscious.He stated that he then told to the relatives of the patient to go outside, disclosed his identity to the patient and purpsoe of the visit.He stated that he then recorded Nakusha's statement as per her say.He stated that he read over the statement to the patient and she approved the same.He further stated that Nakusha informed him that her husband was murdered and since then she was residing at victim's house.She further informed him that her sister, sister's husband, sister's mother-in-law and sister's father-in-law who were residing adjoining to her house were harassing and beating her.Nakusha then disclosed that it was her sister accused no.2 who ::: Uploaded on - 20/01/2016 ::: Downloaded on - 31/07/2016 00:49:23 ::: 5 cra336.12 poured kerosene on her person and accused no.3 set her on fire with the help of matchstick.Nakusha also further stated that her sister's father-in-law was present there with a stone in his hand and was instigating the other accused.This witness also disclosed that Nakusha told him that at the time of incident, juvenile accused in conflict with law-Ram- had held her by her hair.th DATED : 12 January, 2016 ORAL JUDGMENT [Per A.V.Nirgude, J.] 1] This appeal challenges judgment and order, dated 21.4.2012, passed by the learned Additional Sessions Judge, Ahmednagar, in Sessions Case No. 109 of 2011 convicting ::: Uploaded on - 20/01/2016 ::: Downloaded on - 31/07/2016 00:49:23 ::: 2 cra336.12 accused nos. 1 to 3 for offence punishable under Section 302 r/w 34 of the Indian Penal Code and sentencing them for imprisonment for life and fine of Rs.500/- with a default clause.The learned Judge also convicted all accused nos. 1 to 3 for offence punishable under Section 452 r/w 34 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for one year and fine of Rs.200/- with a default clause.The learned Judge made the sentences to run concurrently.::: Uploaded on - 20/01/2016 ::: Downloaded on - 31/07/2016 00:49:23 :::2] Accused nos. 1 to 3 are the appellants here.Accused no.1-Umaji is husband of accused no.2-Kavita.Accused no.3-Sindhubai is mother of accused no.2-Kavita.It was alleged that they on 7.2.2011 at 10.00 p.m. entered the victim's house and then assaulted her.At about 6.00 a.m. the treating doctor informed the Police Head Constable Noor Mohammad who was on duty in the hospital that the patient was admitted to hospital in injured condition.::: Uploaded on - 20/01/2016 ::: Downloaded on - 31/07/2016 00:49:23 :::He stated that in the evening time on that day Shri Bhos recorded victim's statement and handed over the same in an envelope to him.6] PW 10-Shri Bhos stated that as per the request of the police he went to burn ward on 8.2.2011 for recording ::: Uploaded on - 20/01/2016 ::: Downloaded on - 31/07/2016 00:49:23 ::: 4 cra336.12 statement of victim Nakusha.He stated that doctor examined the patient and opined that she was unconscious and was unable to make a statement.He stated that he also got the fact verified and sent a report about it.This report is on record and it shows that the treating doctor Shri Dr. Pathak certified that Nakusha was not in a condition to make statement and was unconscious.This report was made at 9.00 a.m. on that day.::: Uploaded on - 20/01/2016 ::: Downloaded on - 31/07/2016 00:49:23 :::He even stated that Medical Officer also made a remark on the written statement about condition of the patient.The dying declaration is also on record and more or less supports what the Prosecution Witness No.10 stated.::: Uploaded on - 20/01/2016 ::: Downloaded on - 31/07/2016 00:49:23 :::8] Soon after recording of dying declaration, offence was registered initially for offence punishable under Section 307 r/w 34 of the Indian Penal Code against the accused and investigation was started.9] The police recorded statements of witnesses.The police also recorded scene of offence panchanama.On 13.2.2011 Nakusha died and therefore, offence under Section 302 of the Indian Penal Code replaced the earlier offence.The body of the deceased was sent for postmortem and other formalities were completed.Charge sheet was sent against the accused as well as juvenile accused in conflict with law Ram.Entire case of the prosecution depended on the dying declaration.So we would closely look at the credibility of the dying declaration.::: Uploaded on - 20/01/2016 ::: Downloaded on - 31/07/2016 00:49:23 :::witnesses were examined as Prosecution Witnesses.Vilas Kale is panch who witnesses scene of offence panchanama.Though this panch turned hostile, the investigating officer could prove the panchanama properly.This panchanama indicates that the scene of offence is a room having 10 ft.x 12 ft. measurement.There was an iron cot.In one corner of the room there was an iron showcase where TV was placed.In one corner police noticed a kerosene stove.The police also noticed one five litre plastic can placed in the middle of the room.The can was open and it contained kerosene.The floor of the room was earthen paved and bore burn marks at few places.A piece of saree in burnt condition was also found.It is pertinent to note here that there were no marks of struggle on the spot.Even the can containing kerosene was found in standing position.The scene of offence panchanama, in our view, does not corroborate the dying declaration which is narrated above.Had there been an attempt to catch the arms and then set the victim on fire, there would have been some struggle between the assailants and the victim and in struggle the things in the room would have been disturbed.The kerosene can could not have remained in tact in standing position.::: Uploaded on - 20/01/2016 ::: Downloaded on - 31/07/2016 00:49:23 :::and 5-Kisan are neighbours and the relatives of the victim who stated that during that night on hearing commotion they went to the victim's house and found her in burnt condition.They even stated that they extinguished the fire.None amongst them stated as to who took Nakusha to hospital, but all of them stated that Nakusha was 'taken' to Mirajgaon Government Dispensary and thereafter she was taken to Civil Hospital, Ahmednagar.These witnesses did not disclose as to who took Nakusha to hospital and who got her admitted to hospital.It was the duty of the prosecution to bring on record evidence to indicate as to how Nakusha was taken to medical dispensary at Mirajgaon and from there how she was taken to Civil Hospital, Ahmednagar.In this regard the investigating officer PW 9-Dhonde also admitted that he did not receive any information of homicidal attack prior to receiving the dying declaration.12] The prosecution was also under obligation to bring evidence on record to prove as to who treated Nakusha at both these hospitals.When a patient is taken to hospital in such a condition the Medical Officers generally record history of the patient, they maintain the case papers, such case papers are written at the relevant time and become very important piece of evidence.It has come on record.As indicated above, that at about 2.00 a.m. or so Nakusha was ultimately admitted to Civil ::: Uploaded on - 20/01/2016 ::: Downloaded on - 31/07/2016 00:49:23 ::: 8 cra336.12 Hospital.The prosecution did not examine the medical officer who got her admitted, prepared case papers and started medication to her.::: Uploaded on - 20/01/2016 ::: Downloaded on - 31/07/2016 00:49:23 :::13] When a patient in serious condition was brought to Civil Hospital, it was certainly a Medico Legal Case and yet PW 7 Noor Mohammad who was present in the hospital during night did not learn about it.He learnt about it only at 6.00 a.m. It was, therefore, necessary for the prosecution to record deposition of the treating doctor who attended Nakusha at the inception.He could have been an important witness to explain as to whether any history of the patient was recorded; though this was a Medico Legal Case why the constable on duty was not immediately informed about it, etc. He could have also informed the Court as to what medication was administered to the patient.This was necessary because at about 9.00 a.m. in the morning the patient was still unconscious.This witness was necessary also to bring on record as to why no action was taken by police till the dying declaration was recorded rather belatedly at 7.35 p.m. This Witness's deposition was also relevant to bring on record as to what happened between 2.00 a.m. till 7.00 p.m. It has come on record in the deposition of PW 10-Bhos that before recording the dying declaration he was required to remove various relatives from the room.No one comes to Court to depose that he was one such relative who ::: Uploaded on - 20/01/2016 ::: Downloaded on - 31/07/2016 00:49:24 ::: 9 cra336.12 attended the patient during that day.What is rather surprising in this case is the fact that till the offence was registered no one spoke of assault on Nakusha.It is for the first time the victim made a statement that she was subjected to a murderous attack.Had this been such a grave incident, from the time of incident at least some one who attended Nakusha soon after the incident would have reported its ghastly nature to the authorities.::: Uploaded on - 20/01/2016 ::: Downloaded on - 31/07/2016 00:49:24 :::14] The circumstances prior to recording of dying declaration are brought on record through depositions of PW 12-Dr.Vijaya Sardesai and PW 10-Bhaskar Bhos who recorded it.Having regard to the circumstances narrated above, we would rather discard the dying declaration.There is one more reason why we are not giving importance to the dying declaration.Had there been any dispute between these two sisters, the victim would have stated the cause for such dispute.The cause for such dispute would have been equally serious in nature to prompt the assailants committing murder.No attempt is made to bring on record as to what was the cause for alleged dispute between these two sisters.It is an admitted fact that accused no.2 is married and is residing in the same village.The evidence also indicates that she was probably residing in neighbourhood.The father of the victim PW 6-Roopchand did not bring on record as ::: Uploaded on - 20/01/2016 ::: Downloaded on - 31/07/2016 00:49:24 ::: 10 cra336.12 to whether there was any dispute between his two daughters.The deposition of this witness was relevant for that purpose at least.This witness did not support prosecution case.::: Uploaded on - 20/01/2016 ::: Downloaded on - 31/07/2016 00:49:24 :::15] We therefore, hold that the prosecution has failed to prove its case beyond reasonable doubt.We are, therefore, inclined to allow the appeal.16] In the result, we pass the following order.iii] The accused/appellant Nos. 1-Umaji s/o Sukhadeo Zambare, 2-Kavita @ Kaushalya w/o Umaji Zambare and 3-Sindhubai Sukhadeo Zambare are held not guilty of charge for the offences punishable under Sections 302 and 452 r/w 34 of the Indian Penal Code and are acquitted of the said charge and they shall be released forthwith, if they are not wanted in any case.::: Uploaded on - 20/01/2016 ::: Downloaded on - 31/07/2016 00:49:24 :::::: Uploaded on - 20/01/2016 ::: Downloaded on - 31/07/2016 00:49:24 :::

Sections cited: Section 302 in The Indian Penal Code, Section 452 in The Indian Penal Code, Section 307 in The Indian Penal Code