(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 fur