1 criapl-333.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINALAPPEAL NO. 333 OF 2011 WITH CRIMINAL APPLN NO. 2792 OF 2011 1. Govindrao s/o Shamrao Lokhande age 62 years, occupation : Agril. 2. Prakash s/o Govindrao Lokhande, age 34 years, occupation : Agril. 3. Muktabai w/o Govindrao Lokhande, age 57 years, occupation : Agril. and household. 4. Meemabai w/o Raosaheb Pawar, age 30 years, occupation: Agril. and household. 5. Savita w/of Prakash lokhande, age 27 years, occupation: Agril. All r/of Dharmapuri (Mazre), Appellants/ Taluka Loha, District : Nanded. original accused. Nos. 2 to 6. versus The State of Maharashtra Respondent. ------- Shri A.M. Gaikwad, Advocate, for the appellants. Shri N.B. Patil, A.P.P. for the respondent-State. 2 criapl-333.11 Coram : A. H. Joshi & A.R. Joshi, JJ. Date : 23.9.2011. Judgment : ( Per: A. H. Joshi, J.) 01. Heard. Perused the record. 02. The appellants-original accused Nos. 2 to 6 were tried for offences punishable under Sections 498-A and 302, read with Section 34, of the Indian Penal Code, by the learned Additional Sessions Judge, Kandhar, in Sessions Case No. 21 of 2009. They have been acquitted of the charge under Section 498-A of IPC, however, have been convicted for charge under Section 302 of IPC, by judgment and order dated 22.6.2011. 03. It is alleged by the prosecution that the appellants- accused have caused death of Sunita wife of Raghoji Lokhande, by pouring kerosene on her person and setting her to fire. 04. The prosecution has examined in all 14 witnesses. The fact of death of Sunita due to burning is not in dispute. PW-9 Pundalik Zunjare and PW-11 Dr. Thavendra Dihare, are examined in relation to the dying declaration (Exh. 77) and fit state of health of Sunita to make the dying declaration. Other testimonies are formal in nature. 3 criapl-333.11 05. Learned Advocate for the appellants-accused has criticized the dying declaration to be worthy of belief on following grounds:- (i) In the dying declaration itself, Sunita has stated that her husband came running after hearing her shouts and tried to save her, by removing metal roof sheet ( ). (ii) The endorsement on the top of the dying declaration, i.e. at the time of its commencement, reads as follows:- "Patient is conscious and oriented give statement throughout period at 4.20 p.m. on 12.3.09." sd/- Dr. Thavendra" (iii) The endorsement at the bottom of the dying declaration reads as follows: "Patient is conscious and oriented give statement throughout period at 5.00 p.m. on 12.3.09." sd/- Dr. Thavendra" These endorsements suggest that those were written either unmindfully, or have been made only after recording of the dying declaration was completed. (iv) The certificate given by the doctor about fitness of Sunita to give statement, lacks genuineness and credibility. 4 criapl-333.11 (v) Perusal of testimony of PW-9 Pundlik leads to a suggestion that the witness was not sure of what he has done. He was required to refresh his memory on several occasions. Due to this conduct of PW-9 Pundlik, a doubt about the fact as to whether important function of recording the dying declaration was really done by him with all seriousness. (vi) The bed-head-ticket (Exh.88) shows that the state of health of patient Sunita throughout was critical. At no point of time, it is suggested that the state of Sunita was settled and she was in a position to give statement. 07. In order to test the rival submissions, we have perused and re-appreciated the record and testimonies of the relevant witnesses, namely, PW-9 Pundalik (Ex.75) and PW-11 Dr. Thavendra (Exh.85). 08. The burn injuries are seen superficial and deep, covering 91 per cent of the area. The case papers consist of signature of the mother and brother of the deceased, indicating that at about 9.45 a.m. on 11.3.2009, the doctor had informed the mother and brother of deceased Sunita that state of her health was serious. 09. The Bedhead Ticket indicates the endorsement made by the Special Executive Magistrate thereon, about the state of health of Sunita. However, the endorsement is not signed by the doctor. 5 criapl-333.11 10. We, therefore, hold that the deceased being in a fit state of mind and able to give dying declaration, is not duly proved. 11. Moreover, lack of being in a position to be sure as to what the Special Executive Magistrate has done, has revealed from the testimony of PW-9 and thus said testimony creates doubt as to the worthiness of the dying declaration. 12. Considering the contradictions about the state of health of Sunita and also vagueness and lack of certainty seen in the testimony of Pundlik, Special Executive Magistrate, (PW-9) regarding dying declaration, we feel it unsafe to place reliance on the dying declaration. 13. The possibility that the deceased was in a room alone and it was closed from inside, and her husband entered the room by lifting the corrugated metal sheet on the roof of the house, appears to be very strong. We, therefore, hold that the dying declaration, the sole evidence in support of the prosecution case, is not supported or corroborated by any other evidence. On facts, we consider that corroboration was necessary. The Dying Declaration comes under the dark shadow of doubt. 14. In the result, the appeal succeeds and it is, accordingly, allowed. 6 criapl-333.11 15. The judgment and order of conviction and sentence under appeal is set aside. The appellants-accused stand acquitted of the offence under Section 302 read with Section 34 of I.P.C. and are set at liberty, if not required in any other case. 16. Consequently, Criminal Application No. 2792 of 2011 stands allowed and is disposed of. (A. R. JOSHI, J.) (A.H. JOSHI, J.) pnd/criapl-333.11