Bombay High Court
Bapu Haribhau Waman And Ors vs The State Of Mah on 21 September, 2015
Bench: S.S. Shinde
537.2012 Cri.Appeal.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 537 OF 2012
1] Bapu s/o. Haribhau Waman,
Age: 26 Years, Occ: Agri.
2] Sou. Rani w/o. Bapu Waman,
Age: 21 Years, Occ: Agri.
3] Sou. Asrabai w/o. Haribhau Waman,
Age: 56 Years, Occ: Agri.
4] Santosh s/o. Haribhau Waman,
Age: 23 Years, Occ: Agri.
All R/o. Gahukhel, Tq.Ashti,
Dist. Beed. APPELLANTS
[Orig. Accused Nos.1 to 4]
VERSUS
The State of Maharashtra,
Through Police Station Officer,
Ambhora Police Station,
Tq. Ashti, Dist. Beed.
[Copy to be served on Public Prosector,
High Court of Judicature of Bombay
at Aurangabad] RESPONDENT
...
Mr. Satyajit S. Bora, Advocate for the Appellants.
Mr. K.S.Patil, APP for the Respondent - State
...
CORAM : S.S. SHINDE &
A.I.S.CHEEMA, JJ.
Reserved on : 21.07.2015
Pronounced on: 21.09.2015
537.2012 Cri.Appeal.odt
JUDGMENT [Per S.S.Shinde, J.]:
1] This Criminal Appeal is filed by the Appellants -
original accused Nos. 1 to 4, challenging the Judgment and
Order dated 21st July, 2012 passed by the Additional
Sessions Judge-2, Beed in Sessions Case No. 146/2011,
thereby convicting the appellant nos. 1 to 3 [ original
accused nos. 1 to 3] for the offence punishable under
Section 302 r/w.34 of IP Code and they are sentenced to
suffer rigorous imprisonment for life and to pay fine of Rs.
1000/- [Rs.One Thousand only] each, in default to suffer R.I.
for 3 months. Appellant Nos. 1 to 4 [original accused nos. 1
to 4] are further convicted for the offence punishable under
Section 498-A r/w. 34 of IP Code and they are sentenced to
suffer rigorous imprisonment for 2 Years and to pay fine of
Rs.500/- each, in default to suffer R.I. for one month. The
appellant nos. 1 to 3 [original accused nos. 1 to 3] are
further convicted for the offence punishable under Section
341 r/w. 34 of IP Code and they are sentenced to suffer
rigorous imprisonment for one month and to pay fine of
Rs.500/- each, in default to suffer R.I. for one month, and
the appellant nos. 1 to 3 [original accused nos. 1 to 3] are
further convicted for the offence punishable under Section
537.2012 Cri.Appeal.odt
452 r/w. 34 of IP Code and they are sentenced to suffer
rigorous imprisonment for 2 Years and to pay fine of
Rs.500/- each, in default to suffer R.I. for one month. All
the substantive sentences are ordered to be run
concurrently.
Facts of prosecution case, in brief, are as
under:
2]
On 20.06.2011, one ill-fated young woman
namely Manisha d/o. Santosh Waman, resident of
Gahukhed, Taluka Ashti, District Beed [in short 'deceased']
was admitted in burn Ward in the Civil Hospital,
Ahmednagar at about 12.40 p.m. Accordingly, the Medical
Officer informed to the Police Chowki, Civil Hospital,
Ahmednagar about the admission of the deceased. As the
deceased had sustained 68% burn injuries, a letter was
issued to the Special Judicial Magistrate, Ahmednagar [in
short 'SJM'] for recording her dying declaration. After
receipt of the letter, one Mr. Gorakshnath Dashrath
Ghugarkar, SJM, proceeded to the Civil Hospital, met the
Medical Officer on duty and asked her to examine the
deceased / patient about her fitness to give statement.
After examination, the Doctor put an endorsement on the
537.2012 Cri.Appeal.odt
paper on which Dying Declaration was to be recorded that,
the patient was in a fit condition to give her statement. It
was the time of 2.30 p.m. Thereafter, the SJM started to
note down the statement of the deceased. The deceased,
in her statement, divulged the incident, as under:
3] The deceased stated that, she is residing along
with her mother-in-law, father-in-law, brother-in-law, and
sister-in-law is residing separately. She has further stated
that, today i.e. on Mondy at 10.00 a.m., she is burnt in the
house. Her husband is a Driver by Profession. He used to
come in the village once or twice in a week. Her marriage
was solemnized before 1 and ½ years. Her parental home
is at village Ghatpimpri. Her sister-in-law Rani, brother-in-
law Bapu Waman, and mother-in-law used to raise quarrel
with her, since her marriage without any reason. Her
sister-in-law Rani is the daughter of maternal uncle of
accused and she was desiring that, her sister should be the
wife of husband of the deceased. On that count, they
frequently used to raise quarrel with her. The deceased
has further stated that, her mother-in-law always used to
tell her, she is not doing any work why she is cohabiting?
leave the house. Her sister in law always used to say her
537.2012 Cri.Appeal.odt
that, 'she wanted to bring her sister in this house and the
deceased unnecessarily entered in the house'. Her sister in
law used to tell false and also misinform her husband, and
after believing same. Her husband used to harass and ill-
treat her. Her husband used to tell her, 'she should not live
with him, he wants to marry with the sister of Rani, he likes
her and she should leave the house". The deceased has
further stated that, since her marriage, there was intimacy
and closeness between her husband and her sister in law
Rani and they also used to take meals together. They used
to insult and humiliate her. In her presence and also
behind her back, her husband and sister in law used to
come close with different intention. In that way, her sister
in law herself has created a vacuum between her and her
husband.
4] Manisha had further stated that, in the night
her husband had quarreled with her, stating that, 'she
should go to the parental home and live there'. He is
inclined to marry with the sister of Rani as he likes her and
deceased should go and should not return'. As such, her
husband quarreled with her for a whole night and ill-treated
and harassed her.
537.2012 Cri.Appeal.odt
5] The deceased has further stated that, today at
about 10.00 a.m., sister-in-law, mother-in-law and brother-
in-law, the trio had bolted the door of the house from inside
and also shut the windows. Thereafter, her sister-in-law
and brother-in-law poured entire four liters of kerosene on
her person and her mother-in-law ignited match stick and
set on fire one end of her sari, which was soaked with
kerosene.
shrieking.
ig The fire engulf the sari and she started
At that time, her brother-in-law pressed her
mouth. Thereafter, she forcibly rescued herself unlatched
the door and rushed outside. One Shankar Waman, his wife
and children doused the fire, after pouring water. Brother-
in-law and Shankar Waman had brought her in the Hospital.
6] The deceased has further stated that, her
husband always used to tell her 'not to cohabit, leave the
house as he is intending to perform second marriage'.
Since her marriage, her husband is harassing her. Her
sister in law Rani, brother in law Bapu Waman and mother
in law Asrabai Haribhau Waman, the trio with intent to kill
her, after shutting the doors and windows poured kerosene
on her person and set her ablaze.
537.2012 Cri.Appeal.odt
7] The SJM, after recording the statement of the
deceased as above, obtained the endorsement of the
Medical Officer to the effect that, the patient was conscious
and oriented to give the statement throughout the
recording of statement. Thereafter, SJM read over the
contents of the statement to the deceased and obtained
her thumb mark on the said statement.
8]
The Police Chowki, Civil Hospital, Ahmednagar
forwarded the above mentioned statement of the deceased
to the Police Station Ambhora, Taluka Ashti, District Beed.
On the basis of the said statement, the Police Station
Officer registered the Crime No.61/2011 for the offence
under Section 498-A, 307 r/w. 34 of IP Code on the same
day i.e. on 20.06.2011 against the accused persons. As the
offences are cognizable one, the Police Machinery set law
into motion. The investigation of the said crime was
handed over to API Mr. Mahindra Ahere.
9] On 21.06.2011, the Investigating Officer had
deputed PSI Noor Mohd. for recording the statement of the
deceased in the Civil Hospital, Ahmednagar. On
21.06.2011, the Investigating Officer visited the spot of
incident and prepared spot panchanama vide Exh.18 in
537.2012 Cri.Appeal.odt
presence of two panchas. Thereafter, he recorded the
statements of the witnesses as per their say. He seized the
muddemal property. Thereafter, he collected inquest
panchanama and post mortem notes from Ahmednagar
Police. He got prepared a map of spot panchanama
through Revenue Circle Inspector. Thereafter, he arrested
the accused nos. 1 to 3 on 21.06.2011 and accused no. 4
was arrested on 04.07.2011. The deceased breathed her
last on 27.06.2011 when she was under treatment at Civil
Hospital, Ahmednagar. The Investigating Officer on
29.06.2011 sought permission from the Judicial Magistrate
First Class, Ashti, for addition of Section 302 of IP Code
against the accused. After completion of investigation, he
presented the charge sheet against the accused persons
before the Judicial Magistrate First Class, Ashti.
10] Since the offence punishable under Section 302
of IP Code is exclusively triable by the Court of Sessions,
the Magistrate committed the case to the Court of Sessions
for the trial on 19.09.2011. After appearance of the
accused persons, the charge was framed against them vide
Exh.8 on 18.11.2011 for the offences punishable under
Section 498-A, 302, 341 and 452 r/w. 34 of IP Code.
537.2012 Cri.Appeal.odt
Contents of the charge were read over and explained to the
accused persons in the vernacular. The accused pleaded
not guilty. Precisely, accused put the prosecution being to
the task for establishing levelled charges with the requisite
standard of proof.
11] In order to bring home the guilt of the accused
persons prosecution endevoured to examine as many as
eight [8] witnesses as under:
PW-1 Vishnu Nagnath Shekade at Exhibit-17.
He is the Panch witness on the spot
panchanama and search panchanama of
house of the accused.
PW-2 Shankar Dinkar Waman at Exhibit-20. He
is the witness before whom deceased
revealed about the incident.
PW-3 Gorakshnath Dashrath Ghugarkar at
Exhibit-22. He is the Special Judicial
Magistrate, who recorded the dying
declaration of the deceased in Civil
Hospital, Ahmednagar.
PW-4 PSI Noor Mohd. of Ashti Police Station at
Exhibit-27. He has recorded dying
537.2012 Cri.Appeal.odt
declaration of the deceased after visiting
Civil Hospital, Ahmednagar.
PW-5 Dr. Priti Kamble at Exhibit-32. She is the
Medical Officer at Civil Hospital,
Ahmednagar, who had examined the
deceased before and after recording her
dying declaration and put such
endorsement on dying declaration
ig recorded by SJM.
PW-6 Dr. Shrikant Pathak at Exhibit-34. He is
the Medical Officer, Civil Hospital,
Ahmednagar, who had conducted autopsy
on the dead body of the deceased.
PW-7 Namdeo Ramchandra Ghumbre at
Exhibit-36. He is the father of the
deceased before whom the deceased has
revealed the incident.
PW-8 API Mahindra Ahere at Exhibit-37. He is
the Investigating Officer.
12] Accused are called upon to explain
incriminating circumstances appearing against them during
the course of evidence by recording their statement under
Section 313 of Criminal Procedure Code. The defence of
537.2012 Cri.Appeal.odt
accused is of total denial. The accused persons have also
submitted their written statement in their defence vide
Exhibit-48. The accused persons in order to substantiate
their defence examined one Usha w/o. Shankar Waman
[DW-1] at Exhibit 49.
13] The learned counsel appearing for the
Appellants submitted that, the story putforth by the
prosecution regarding inclination of the Appellant No.4 to
marry with the sister of the Appellant No.2 is an
afterthought and false. The deceased Manisha was moved
to the Hospital by the Appellant No.1 himself, which is
mitigating circumstance in favour of the Appellants. The
spot panchanama at Exhibit-18 does not support the
prosecution case, as it has not been duly proved. The
ocular evidence of PW-1 Vishnu Nagnath Shekade at
Exhibit-17 also does not support the prosecution case, and
the same is full of omissions and contradictions. The
evidence of PW-2 Shankar Dinkar Waman at Exhibit-20 is
full of omissions and contradictions, and cannot be relied
upon. The evidence of PW-3 Gorakshnath Dashrath
Ghugarkar at Exhibit-22, the Special Judicial Magistrate,
who recorded the dying declaration of deceased Manisha, is
537.2012 Cri.Appeal.odt
not trustworthy, and is full of omissions and contradictions.
The prosecution did not examine any independent witness
to prove the fact of ill-treatment, and the alleged incident.
The evidence of PW-5 Dr.Priti Kamble at Exhibit-32, and
PW-6 Dr. Shrikant Pathak at Exhibit-34 are also no
assistance to the prosecution and moreover, the
endorsement on the dying declaration falsely put, thereby
diminishing the sanctity of dying declaration.
14] It is submitted that, the written statements of
the Appellants in their defence vide Exhibit-48 have not
been considered by the trial Court in its proper perspective.
The testimony of defence witness namely Usha w/o.
Shankar Waman at Exhibit-49 has also not been considered
by the trial Court, which points out the innocence of the
Appellants. Two dying declarations of deceased Manisha
recorded on 20th June, 2011 and 21st June, 2011 have not
been duly proved and there is inconsistency between them.
It is submitted that, the deceased Manisha was not in
conscious and fit state of mind, while giving her dying
declaration, and therefore, the same could not be relied
upon and recorded by the trial Court to base the conviction.
The dying declaration, recorded by Special Judicial
537.2012 Cri.Appeal.odt
Magistrate, which has been recorded is suspicious and
tutored one, which is in printed form. The thumb
impression of the deceased Manisha was obtained on the
blank paper and then, rest of the part of dying declaration
was recorded. The admission illustrated from cross
examination of Dr.Priti Kamble reveals that, general
condition of deceased was not normal even prior to
recording of dying declaration, and subsequently, even on
the case papers, the endorsement appears that, 'general
condition low' and the said condition persisted all
throughout. The deceased was administered the sedatives
and, therefore, she was not conscious and in fit state of
mind on account of drowsiness. The deceased Manisha was
desired to stay at Ahmednagar and, therefore, after
noticing that, her desire could not be fulfilled, she had set
herself ablaze. It is admitted by the PW-7, who is father of
the deceased that, while recording the dying declaration,
he was nearby the deceased and, thus, there is suspicious
stand taken in the dying declaration, and it was not prudent
to act of such dying declaration without there being any
corroboration.
15] The learned counsel submitted that, upon
537.2012 Cri.Appeal.odt
reading dying declaration at Exhibit-24, it is abundantly
clear that, the Magistrate did ask leading questions to the
declarant, which is not permissible. In support of this
contention, he placed reliance in the case of Shirinath
Durgaprasad Vs. State1 and in the case of Khushal Rao
Vs. State of Bombay2.
16] On the other hand, the learned APP appearing
for the Respondent - State invited our attention to the
notes of evidence, and also reasons assigned by the trial
Court and submits that, the learned trial Court has properly
considered the evidence on record. Therefore, this Court
may not entertain the Appeal filed by the accused -
Appellants.
17] We have given consideration to the
submissions of the learned counsel appearing for the
Appellants and the learned APP appearing for the
Respondent - State. With their able assistance, perused
the entire evidence so as to re-appreciate the same.
18] The prosecution examined Vishnu Nagnath
Shekade as PW-1, who was witnessed to the spot
1 1957 Cri.L.J. 1104
2 1958 AIR [SC] 22
537.2012 Cri.Appeal.odt
panchanama. During his cross examination, he stated that,
he had an occasion to see the house where Police prepared
spot panchnama. Prior to panchanama, accused nos. 1 and
4 and their parents are residing separately since marriage
of accused No.4. Accused Nos. 1 and 4 reside in one house
and their parents reside beside in the house having tin
shed. He further stated that, even earlier he was called by
the Police.
ig He stated that, 5 articles which were seized,
were already kept by Police Patil.
19] The prosecution examined Shankar Dinkar
Waman as PW-2. He stated that, accused nos. 1 and 4 are
his cousin brothers. Their houses are at the distance of 30
to 35 feet away from his house. Accused No.4 is working as
Truck Driver. Marriage of accused No.4 was solemnized
with Manisha about one year prior to the incident. After
marriage, Manisha came to reside at Gahukhel. After one
month of marriage, accused No.4 and Manisha started
residing separately. He further stated that, incident of
Manisha took place on 20th June, 2011 at 10.00 a.m. At that
time, he himself and his wife were in their house. At that
time, he heard hue and cry, then, they went towards the
house of accused after hearing shouts. When they reached
537.2012 Cri.Appeal.odt
there, they found that, Manisha was burnt. At that time,
accused Nos.1 to 3 were pouring water on the body of
Manisha. Accused No.1 told him to bring Tempo. He
brought Tempo. Manisha, accused No.3 and others went to
Ahmednagar Hospital by the said Tempo. He had been to
Ghatpimpri to inform about the incident to the parents of
Manisha, and thereafter, he went to Hospital at
Ahmednagare where Manisha was admitted.
happen that, when Manisha had come to matrimonial
It did not
home, there used to be quarrel between the accused
persons. He denied any oral narration by Manisha on the
date of incident.
20] He was declared hostile by the prosecution and
was cross examined. He stated that, portion marked 'A' in
his statement was not stated by him to the Police, and also
portion marked 'B' and 'C' from the supplementary
statement was also not stated by him. He further stated
that, he had given application to the Deputy
Superintendent of Police, contending that, Police has not
recorded his statement and in his name false statement
was recorded by the Police. In the said application, he had
also mentioned about false statement of his wife, recorded
537.2012 Cri.Appeal.odt
by the Police. He stated that, it is true that, after Manisha
was taken to Hospital, there was nobody in the house of
accused. Whatever incident he had seen, it was happened
in court yard. Since when he came on spot and Manisha
was taken to Hospital, it took half an hour. At that time,
persons from Vasti gathered there. He had not seen
whether door was fixed to the house of Santosh or not. He
had informed parents of Manisha that, Manisha was burnt
and she was taken to Ahmednagar for treatment. Parents
of Manisha also immediately came to Hospital.
21] The prosecution case mainly rests upon two
officially recorded dying declarations, which are at
Exhibit-24 and 29.
22] The dying declaration at Exhibi-24 was
recorded by Mr. G.D.Ghugarkar, Special Executive
Magistrate, Ahmednagar. Upon perusal of the said dying
declaration, the said is recorded on 20th June, 2011 at 2.35
p.m. There is endorsement of the Medical Officer at 2.30
p.m. It is mentioned that, patient is conscious and oriented
to give statement. It appears that, Exhibit-24 is recorded in
question-answer form. The declarant stated her name,
business and qualification. Thereafter, she stated that,
537.2012 Cri.Appeal.odt
father-in-law, mother-in-law and her husband and herself,
they are residing together and brother-in-law and sister-in-
law residing near their house. When she was asked how
she sustained burn injuries, she replied that, at about 10.00
a.m. the said incident had taken place in her house. Her
husband is a driver and comes to house once or twice in a
week. The marriage was performed 1 ½ year before the
date of incident. Her mother-in-law and sister-in-law
started quarreling with her since marriage without any
reason. The sister-in-law wants that, her sister should
marry with the husband of declarant Manisha, and
therefore, sister-in-law, mother-in-law used to quarrel with
her. Mother-in-law always says that, she is not working
then why she is staying in the matrimonial house, and
Manisha should leave the matrimonial house. Sister-in-law
says that, she wants to bring her sister in the house, she
instigated her husband and tell lies and as a result husband
ill-treats her. He says that, he wants to marry with the
sister of sister-in-law Rani, he likes her very much and says
that, she [Manisha] should go from the house. When she
was married, there was close relationship between her
husband and sister-in-law. They used to have meal
together in one plate. They used to harass her. Her
537.2012 Cri.Appeal.odt
husband and sister-in-law used to come closer with
different intention. Her sister in law widened the gap
between her husband and herself.
During earlier night, husband quarreled with
her. He told her that, she should go to her parents house
and she should reside there. He wants to marry with sister
of sister-in-law Rani, he does not like her, she should go to
the parent house and should not come back. Accordingly,
he quarreled during night and harassed her
23] Today at 10.00 a.m., sister-in-law, mother-in-
law and brother-in-law latched the door of the house from
inside and also closed the windows. Sister-in-law and
brother-in-law poured four liters of kerosene from drum,
and Mother-in-law ignited match stick and set on fire one
end of her sari, which was soaked with kerosene. The fire
engulf the sari and she started shrieking. At that time, her
brother-in-law pressed her mouth. Thereafter, she forcibly
rescued herself unlatched the door and rushed outside.
One Shankar Waman, his wife and children doused the fire,
after pouring water. Brother-in-law and Shankar Waman
had brought her in the Hospital. The deceased further
stated that, her husband always used to tell her 'not to
537.2012 Cri.Appeal.odt
cohabit, leave the house as he is intending to perform
second marriage'. Since her marriage, her husband is
harassing her. Her sister in law Rani, brother in law Bapu
Waman and mother in law Asrabai Haribhau Waman, the
trio with intent to kill her, after shutting the doors and
windows poured kerosene on her person and set her
ablaze. She further stated that, the contents of dying
declaration were read over to her and they are correct as
per her narration. Due to burn injury to her hands, she has
given thumb impression of left hand. It appears that, there
is endorsement of the Medical Officer at the end of the
dying declaration. The said endorsement is at 3.15 p.m. It
is stated that, patient was conscious and oriented to give
the statement [throughout the statement]. It further
appears that, the said dying declaration is signed by Mr.
G.D.Ghugarkar, Special Executive Magistrate. The thumb
impression is also attached by the said Executive
Magistrate.
24] The prosecution examined Gorakshanath
Dashrath Ghugarkar as PW-3. In his deposition, he stated
about his appointment and experience of work as Executive
Magistrate. He stated that, on 20th June, 2011, letter was
537.2012 Cri.Appeal.odt
issued by P.C. Sayed of Police Chowki, Civil Hospital,
Ahmednagar to him for recording dying declaration of
Manisha Santosh Waman. After receipt of said letter, within
half an hour, he had been to Civil Hospital, Ahmednagar.
On reaching Hospital, he met duty Medical Officer Dr. Priti
Kamble and shown her letter. He told Doctor that, he has
to record dying declaration of patient [Manisha] and asked
her to come with him. Thereafter, he himself along with
Doctor went to the Burn Ward where Manisha was
admitted. Thereafter, he requested Doctor to examine the
patient and put endorsement on the paper whether patient
is in fit condition to give statement. Thereafter, Doctor
examined the patient and put endorsement on the paper on
which dying declaration was to be recorded. The Doctor
signed the said endorsement and put date and time as 2.30
p.m. Thereafter, he directed the relatives of the patient to
go out of the said hall. As per his direction, all the relatives
went out of the hall. He himself and Doctor were there in
the said hall. Thereafter, he himself introduced to patient
at 2.35 p.m. Accordingly, patient taken oath. He himself
also verified whether patient is in a fit condition to give
statement. Thereafter, he started asking the question to
patient as to what is her name, education, age, residence,
537.2012 Cri.Appeal.odt
etc. She told her name as 'Manisha Santosh Waman, r/o.
Gahukhel, Taluka Ashti, District Beed. She stated her age
19 years, qualification 10th, Occu. Household and
agriculture. Thereafter, he asked her whether she
understands Marathi, she replied in the affirmative. Then
he asked her who stays along with her in the house. She
replied that, husband, mother-in-law, father-in-law and she
herself stays together and brother-in-law and sister-in-law
stays adjacent to their house. Thereafter, he asked her
how she burnt and asked in detail. She replied that, she
today at 10.00 a.m. she burnt in the house. Her husband is
a Driver and comes to the house once or twice in the week.
Her marriage took place 1 ½ years prior to the date of
incident and her parental home is at Ghatpimpri. She
further stated that, after her marriage, her mother-in-law
and sister-in-law quarrels with her for no reason. She told
that, her sister-in-law Rani Bapu Waman is a daughter of
maternal uncle of accused. Her sister-in-law went to bring
her sister in the house, instead of her [Manisha], as wife of
her husband. She further told that, her mother-in-law used
to say her to leave the house. Her sister-in-law used to tell
lie to her husband and on that count her husband used to ill
treat her. Her husband used to tell her to leave the house,
537.2012 Cri.Appeal.odt
as he wants to marry with sister of Rani, as he likes her.
After marriage, her sister-in-law has close relation with her
husband, and they used to show intimacy with each other.
They both used to take food together and as such used to
tease and humiliate her. They both used to be together
with different intention. In the night her husband quarrel
with her and also assaulted her and ill-treated her. She
further stated that, today at 10.00 a.m. her sister in law,
brother-in-law, mother-in-law locked the door from inside
and closed the windows. Thereafter, her brother-in-law and
sister-in-law poured kerosene of four liters on her person.
Thereafter, her mother-in-law lit the match stick and put to
her sari, smeared with kerosene, due to which she got burn,
she raised cry, but her brother in law pressed her mouth.
She further stated that, she forcibly rescued herself and
opened the latch of door and came outside the house. She
further told that, one Shankar Waman and his wife poured
water on her person and douse the fire. Thereafter, her
brother-in-law and Shankar brought her in the Hospital.
She further stated that, her brother-in-law, sister-in-law and
mother-in-law, with intention to kill her poured kerosene on
her person and set her on fire.
537.2012 Cri.Appeal.odt
25] After completion of recording of the statement,
he read over the same to Manisha and she admitted to be
correct and accordingly he made such endorsement. Since
both hands of Manisha had burnt, so he obtained left hands
thumb impression of Manisha on the statement and he
himself attested said thumb impression. Thereafter, he
asked the Doctor who was present there to examine the
patient and put such endorsement as to whether patient
was oriented during her statement. Accordingly, Doctor
examined Manisha and put endorsement. During entire
statement, patient was in conscious and in fit condition to
give statement and put the date and time as 3.15 p.m.
Thereafter, PW-3 signed the statement, after affixing the
stamp. After recording the statement, he himself and
Doctor came outside and went inside nurses room and
sealed the envelope, after keeping dying declaration
therein. He handed over said sealed envelope to the Police
of Police Choki, Civil Hospital, Ahmednagar and to that
effect he obtained the acknowledge of Police on the letter
at Exh.23.
26] This witness was cross examined by the
Advocate for the accused. When he asked whether he was
537.2012 Cri.Appeal.odt
authorized to record dying declaration, he stated that, he
has not brought the copy of order. When he came in
Hospital, he did not inquire as to how much percent, the
patient is burnt. He had not inquire as to who was the
incharge of Burn Ward where Manisha was admitted. He
met Dr. Kamble in OPD hall. The said Burn Ward is at the
distance of 100 meters in the same building from OPD. In
the said Burn Ward, there was no separate room but there
are compartments. He had not verified from the relatives
about the patient. He had also not inquired with patient as
to who are the persons who were near the patient and he
directed them to go out. He did not feel it necessary to ask
patient so as to ascertain whether the patient was under
pressure or not. He stated that, it is true portion marked
'A' on Exhibit 24 is printed matter. it is true portion marked
'A' is already printed, before ascertaining it from patient. It
is true portion marked 'B' on Exh.24 is also printed matter
and same portion is there. Prior to asking questions to
patient, he had not asked Manisha as to which village said
incident took place. He does not know whether
administration of oath is mandatory before recording dying
declaration. Before recording statement of Manisha, he did
not inquire with the relatives of the patient, he also did not
537.2012 Cri.Appeal.odt
make inquiry, as to whether Manisha is mentally retarded
or not. He denied suggestions that, in the dying declaration
at Exh.24, the last paragraph is the summary of entire
statement. However, he admitted that, it is true in Exh.24
at the end, the matter written below attestation of T.I. is not
written in one line. He denied suggestion that, both the
endorsements put by the Doctor are endorsed at one time,
without examining the patient. He recorded the statement,
after ascertaining that patient was not under pressure.
27] The prosecution examined PW-5 Dr. Priti Arvind
Kamble. She was working as an Medical Officer, Civil
Hospital, Ahmednagar at the relevant time. In her
deposition, she stated that, since last three years, she is
working as an Medical Officer in Civil Hospital, Ahmednagar.
On 20th June, 2011, she was on duty as Casualty Medical
Officer. On the same day, patient Manisha Santosh Waman
was admitted in the Civil Hospital, Ahmednagar. She
admitted the said patient. The said patient was burnt 68%.
She was admitted in Burn Ward. While admitting the said
patient, patient was conscious and oriented. Before
recording of dying declaration by the Special Judicial
Magistrate, she examined the patient and found that, she
537.2012 Cri.Appeal.odt
was conscious and oriented and her pulse and BP was
stable, therefore, she allowed Magistrate to record her
statement. She put endorsement on the said dying
declaration at Exhibit-24. She endorsed initially at 2.30
p.m. The recording of statement of patient was completed
at 3.15 p.m. After completion of recording of dying
declaration, she again examined the patient and found
that, she was conscious and oriented and also she checked
her pulse and BP which was normal. The patient was
conscious through out her statement. She endorsed at the
end of dying declaration at 3.15 p.m.
28] In her cross examination, she stated that,
patient Manisha was admitted in Hospital at 11.50 a.m. On
the admission paper, the person who admitted Manisha is
one Asrabai Haribhau Waman i.e. accused No.3. In the
history column, it is mentioned as burn, but from same,
they cannot analyze whether it is a suicidal or homicidal
burn. The treatment given to the patient at the time of
admission is mentioned in the right hand side column of
case paper. Thereafter, he had called Surgeon, on call. At
the time of admission of patient, the burns on the patient
was about 68%. After examining the patient and finding
537.2012 Cri.Appeal.odt
the condition of patient is serious, same is informed to
relative of patient. Brother of Manisha has endorsed the
case paper, about receipt of said information. The
endorsement subsequent to 3.15 p.m. shows that, general
condition of patient is low. All endorsements thereafter are
of GC low [General Condition Low]. At the time of discharge
of patient from Hospital, her condition was low. The patient
was administered fortwin on 20th June, 2011. On 20th June,
2011, the charge of burn ward was Dr. Pathak.
29] The prosecution examined Dr. Shrikant
Chandrakant Pathak as PW-6. He deposed that, the dead
body of Manisha Santosh Waman was received in Navodaya
Hospital on 27th June, 2011 at 3.00 p.m. The said dead
body was brought by one ASI Mantode. The said dead body
was identified by Namdeo Mahadeo Ghumre i.e. father of
the deceased. PW-6 started post-mortem examination at
4.30 p.m. and completed at 5.15 p.m. Age and gender of
dead body was 19 years female. While post-mortem
examination, he found infected burn injuries on the body
i.e. 70% area was found to be burnt. The specification is
mentioned in column No.17 as under:
537.2012 Cri.Appeal.odt
Right upper limb : 6%
Left upper limb : 7%
Right lower limb : 7%
Left lower limb : 10%
Head. Neck. Face : 7%
Abdomen chest : 18%
Back : 15%
All the injuries are ante-mortem. As per his
opinion, the probable cause death is due to septicaemic
shock due to 70% burn. Accordingly, he prepared P.M.
notes. It bears his signature. Its contents are correct and
same is at Exhibit-35. If some one poured kerosene and lit
it, these type of injuries are possible.
30] During his cross-examination, he stated that, as
per his opinion, the burn injuries of the patient got infected
and death is occurred due to said infection. He cannot tell
whether said burn injuries are accidental, suicidal or
homicidal.
31] It appears that, the dying declaration at Exh.29
is recorded by the Assistant Police Inspector, Police Station
Ambhora. In the said dying declaration, Manisha
[deceased] stated that, her parent's place is Ghatpimpri.
537.2012 Cri.Appeal.odt
She is doing household work and residing at Ashti. Her
husband is working as a Driver. She is having father-in-law
and sister-in-law, they are residing with them. Her
marriage took place before 1 to 1 ½ year prior to the date
of the incident. There is no any child born out of wedlock.
Her brother-in-law Bapu, her sister-in-law Rani and mother-
in-law Asrabai started harassing and ill-treating her. They
used to say that, she cannot do any work, and she should
leave the matrimonial house. They used to tutor her
husband.
32] On 20th June, 2011 at about 10.00 a.m., her
brother-in-law Bapu Haribhau Waman, sister-in-law Rani
and mother-in-law Asarabai Haribhau Waman entered in
the house, brother-in-law Bapu and sister-in-law Rani
poured kerosene on her and mother-in-law Asarabai ignited
match sticks and set her ablaze. Boarder of her saree
caught fire. She shouted loudly, at that time, brother-in-law
pressed her mouth. However, she managed to come out of
the house. Shankar Waman and her wife extinguished the
fire. She was taken to the Hospital by Shankar Waman,
mother-in-law Asarabai, brother-in-law Bapu and Nandu
Waman and she was admitted in the Hospital for treatment.
537.2012 Cri.Appeal.odt
The statement was read over to her and she stated that,
contents are as per her narration.
33] On careful perusal of her thumb impression
appearing on original copy of dying declaration, said thumb
impression is not identified. It is true that, the Doctor has
given an endorsement that, the patient is conscious, and in
good condition after giving oral statement. The said
endorsement is on 21st June, 2011 at 1.30 a.m. There is
also endorsement in the beginning that, the patient was
conscious in good condition to give oral statement at 12.00
mid night.
34] Noor Mohd. Faiz Mohd. [PW-4], who recorded
the dying declaration at Exhibit-29. In his deposition before
the Court stated that, on 21st June, 2011, he recorded
statement of Manisha in Civil Hospital, Ahmednagar. Prior
to it, copy of dying declaration recorded by Magistrate, had
received by his Police Station from Civil Hospital, Nagar.
His superior ordered him to record the statement of
Manisha by going to Civil Hospital, Nagar. Accordingly, he
issued a letter to the Medical Officer, requesting him to give
opinion whether Manisha is in fit condition to give
statement. Accordingly, Doctor had come and examined
537.2012 Cri.Appeal.odt
the patient and made an endorsement that patient is able
and in good condition to give statement. Thereafter, he
started recording of statement of Manisha. He recorded
statement of Manisha as per her say. After completion of
statement, the said was read over to Manisha and her left
hand thumb mark was obtained. After completion of
statement, Doctor again examined her and made an
endorsement that, the patient was conscious, oriented and
in good condition to give statement. The said endorsement
given by the Doctor at 1.30 a.m. Doctor signed on the said
statement in the presence of PW-4.
35] Manisha stated that, the incident took place on
20th June, 2011 at 10.00 a.m. The accused Nos. 1 to 3
brought kerosene can and accused nos. 1 and 2 poured
kerosene on her person, accused no.3 lighted match stick
and accused no.2 caught hold her. Thereafter, she
screamed and shouting came out of the house. Then, PW-4
handed over the said statement to API Ahire. Thereafter,
further investigation was carried out.
36] During his cross examination, he stated that, he
went to the Civil Hospital, Nagar along with ASI Konde as
per the direction given by his superior Officer. They did not
537.2012 Cri.Appeal.odt
inquire who was the incharge Medical Officer of that burn
Ward. When he went there, Manisha was in a room. At
that time mother and sister of Manisha were present there.
At that time medical treatment of Manisha was going on.
He further stated that, when he recorded dying declaration
and when Doctor endorsed on paper, he did not pay
attention whether Doctor also endorsed on case papers of
Manisha. He further stated that, while recording statement
of Manisha, he had also asked to mother and sister of
Manisha about incident. Whatever he recorded in dying
declaration, on same line, mother and sister of Manisha
told him. He further stated that, said dying declaration is
not recorded in his handwriting. He further stated that, he
did not mention in the statement, time of recording about
starting and completing the statement. He took him
around 20-25 minutes to complete the recording of
statement. He further stated that, it is true since Manisha
was burnt, she was having severe pain and agony. It is true
since there were severe pains to Manisha, it was difficult for
her to speak. She did not ask about mental condition of
Manisha whether she was sound and unsound of mind.
When the Doctor endorsed at the end of statement whether
PW-4 endorsed on the case papers of Manisha, he was not
537.2012 Cri.Appeal.odt
seen. He further stated that, it is not mentioned in dying
declaration that, accused nos. 1 to 3 brought kerosene can.
Similarly it is not mentioned in dying declaration that, the
accused no. 2 caught hold her hand. It is not true that, he
has recorded the statement on the say of mother and sister
of Manisha.
37] Upon careful perusal of evidence of PW-4, it
appears that, he did not mention time either in the
beginning or at the end, when he started recording of dying
declaration, and when said recording of dying declaration
was completed. He did not inquire who is the Doctor who
treated Manisha. Upon careful perusal of dying declaration,
it appears that, initial endorsement given by the Medical
Officer is at 12.00 midnight and second endorsement at the
end of dying declaration by the Doctor is at 1.30 a.m.
Therefore, as per the endorsement given by the Medical
Officer, the recording of dying declaration started at 12.00
midnight and it was completed at 1.30 a.m. However, PW-4
in his cross examination stated that, it took 20-25 minutes
to complete the recording of statement. It has also come in
the cross examination of PW-4 that, when he went to the
recording of statement of Manisha in a room at that time
537.2012 Cri.Appeal.odt
mother and sister of Manisha were present there. He has
also stated that, while recording the statement of Manisha,
he has also asked to her mother and sister about the
incident. Therefore, it is abundantly clear that, while
recording the statement of Manisha, her mother and sister
were present there. Apart from it, as already observed, the
thumb impression, which is taken on the dying declaration
is not identified. Upon careful perusal of the copy of dying
declaration and in particular thumb impression, it creates
suspicion in the mind, whether the same is really thumb
impression of the declarant Manisha. PW-4 has also stated
in his cross examination that, he was not aware that, when
the Doctor has given endorsement at the time of recording
of statement.
38] It has come on record in the evidence of PW-4
that, the Medical Officer gave an endorsement on dying
declaration. However, the said Medical Officer is not
examined by the prosecution. His examination was
necessary for the reason that PW-4 in his evidence stated
that, he cannot remember when endorsement was given by
the Medical Officer. It appears that, the Medical Officer
gave an endorsement at 12.00 midnight, and after
537.2012 Cri.Appeal.odt
recording the dying declaration at 1.30 a.m. However,
PW-4 in his evidence stated that, he recorded the
statement of Manisha within 20-25 minutes. It has also
come on record in the evidence of PW-4 that, the mother
and sister of the Manisha were present at the time of
recording of the dying declaration. Not only that but he
also interacted them about the incident. Therefore, in the
light of discussion herein above, the dying declaration at
Exhibit-24 cannot be believed and same deserves to be
discarded.
39] The prosecution examined Namdeo
Ramchandra Ghumre as PW-7. He is father of Manisha. He
deposed that, marriage of deceased Manisha was
solemnized with accused No.4 on 25th May, 2010. After
marriage, deceased went for co-habitation at Gahukhel at
her matrimonial home. Accused treated her well for 4-5
months and thereafter, they started ill-treating her. The
accused persons used to tell Manisha that, she does not
know how to do work and she should leave the house and
give the divorce. Manisha used to tell him about ill-
treatment and at that time, he tried to convince her and
sent her to matrimonial home. One day before incident,
537.2012 Cri.Appeal.odt
accused No.4 called him on phone and told that, he should
take Manisha from the matrimonial house since he does not
want to cohabit with her.
The incident took place on 20th June, 2011. On
that day, at 11.00 a.m. one Shankar Waman had come to
PW-7 and told about incident. He told that, Manisha is burn
and is taken to the Hospital. Thereafter, he himself, his wife
Latabai went to the Civil Hospital, Ahmednagar and met
Manisha in the Hospital and they saw that, Manisha was
burnt. On meeting her, Manisha told them that, accused
Nos. 1 to 3 poured kerosene on her person and set her on
fire. Thereafter, Manisha was shifted to Navodaya Hospital,
for further treatment. On 27th June, 2011, during her
treatment at Navodaya Hospital, Manisha died. Police
recorded his statement on 21st June, 2011 and
supplementary statement on 29th June, 2011. He identified
the accused, who were present in the Court.
40] During his cross examination, he stated that,
distance between Ghatpimpri and Gahukhel is 4-5
kilometers. The villagers of both villages used to visit each
other in connection with their work. Therefore, he is aware
about the villagers of Gahukhel previous to marriage of
537.2012 Cri.Appeal.odt
Manisha. His niece is given in the family of Waman at
Gahukhel. Wife of Shankar PW-2 is from their village and
her marriage was solemnized prior to marriage of Manisha.
The proposal for marriage of Manisha with accused No.4
had come from the side of the accused persons in the
programme of showing bride. All accused persons
approved bride Manisha. His daughter Manisha was good
looking and was well efficient in agricultural work as well as
in domestic work. Prior to engagement of marriage, he
inquired about the accused persons. Accused Nos. 1 to 4
being drivers are meant good amount. The accused were
having their own house constructed in RCC. There was old
house of accused persons. In old house in laws i.e. accused
No.3 and her husband were residing and in RCC house,
accused No.1 and 4 were residing separately. The
marriage of Manisha was solemnized happily. After
marriage the matrimonial life of accused and Manisha was
going happily and smoothly. Whenever accused No.4 used
to go for his work, he used to return after 8 days. During
that period, Manisha used to stay alone in the house. He
himself and his wife used to go to house of Manisha
occasionally. Accused No.2 Rani is the daughter of
maternal uncle of accused No.4. Accused No.2 Rani since
537.2012 Cri.Appeal.odt
prior to her marriage, residing with co-accused persons.
The relation between accused Nos. 2 and 4 is as brother
and sister.
He had been to Gahukhel, two days prior to the
incident. At that time when he went to the house of
Manisha, accused Nos.2, 3 and his daughter were present
in the house of accused No.2. It was 2 to 3 p.m., all were
watching T.V. At that time, accused No.4 had gone to
Kerala in his vehicle on that day. He was there in the house
of accused for about an hour. He had taken lemon juice at
the house of accused No.2. Thereafter, he went in the
house of his daughter Manisha. He was at Manisha's house
for about 5 to 10 minutes when he had been to house of
Manisha, he asked her about her day to day life. At that
time, Manisha did not tell him about harassment. Prior to
15 days of incident, his wife had been to house of Manisha
with mango. At that time, his wife stayed there for one
day. When his wife returned from house of Manisha, he
asked his wife whether Manisha had told anything, his wife
replied that, Manisha has not stated anything.
41] PW-7 came to know about the incident from
one Shankar Waman that, Manisha was burnt and she was
537.2012 Cri.Appeal.odt
taken to Hospital. Then, he himself, son, his wife and all
relatives went to the Hospital. When they went to Hospital,
they saw that, except accused No.4, all accused were
present there. At that time, condition of Manisha was
critical. He had inquired about the condition of Manisha
with Nurse and she told that, her condition is serious. He
was in the Hospital till Manisha breathed last. He further
stated that, Manisha will not survive looking to her health
condition.
It was desired of Manisha that, she along with
accused No.4 should reside at Ahmadnagar. It is true that,
desire of all accused was that, deceased Manisha should
stay at village. There was quarrel between Manisha and
accused No.4, but he is not aware cause for such quarrel.
The said quarrel was took place on account of stay at
Ahmednagar. When accused No.4 and Manisha visited the
house of the accused, quarrel took place between them,
and it was on account of desire of Manisha to stay at
Ahmednagar. At that time, he told accused No.4 that, if
Manisha desires to stay at Nagar, they should stay at
Nagar. At that time accused No.4 told him that, he goes on
duty and remains out of station for 8 days, therefore, he
537.2012 Cri.Appeal.odt
was not ready to take Manisha to Ahmednagar. He told
accused No.4 that, he should stay at his Aunt's house as he
was working as Driver on their vehicle itself. Accused No.4
and Manisha had come to his house lastly one month prior
to incident. At that time, there was quarrel between them
on account of Manisha's desire to stay at Nagar. He further
deposed that, accused No.4 might have told him that,
Manisha threatened that she should commit suicide but he
cannot tell exactly. He further stated that, he thought that,
whatever incident had taken place must have happened
on the reason of going to Nagar. He further deposed that, if
accused No.4 would have taken Manisha to Nagar, said
incident could not have been happened.
At about 2.00 to 3.00 p.m, two persons inquired
about the incident, he was near Manisha. Whenever
statement of Manisha was being recorded, he was nearby.
During recording of statement, no third person had come
there. The person who had come for recording statement
was in civil dress. While recording the statement, said
person made him stand near door and no third person had
come there. During recording of statement, Doctor had not
come there in Nagar Hospital and there is half partition
537.2012 Cri.Appeal.odt
between two cots. He further deposed that, the said person
did not write anything in his presence. Thereafter, said
person left the ward. Second statement of Manisha was
recorded in the evening. In the night Police had inquired
with him on that day. In the evening, Police Officer and
other Police staff had come for recording statement. The
Police were there for 10-15 minutes when Police persons
had come, he was near Manisha. At that time, Police
inquired with him and while returning. The police persons
have taken accused persons with them. Both the persons
who had come to record statement of Manisha had taken
the thumb mark of Manisha. When police had come to
record the statement, at that time except PW-7 and Police,
no third person was there. At that time, he told Manisha
that, she should give statement against accused persons.
At that time, he told Manisha as to how statement has to be
given.
42] The prosecution examined Mahindra Damodhar
Ahere as PW-8. He was working as API, Police Station,
Ambhora. He stated that, crime was registered on the
basis of statement of deceased Manisha, which was
recorded in the Civil Hospital, Ahmednagar by Special
537.2012 Cri.Appeal.odt
Magistrate. Initially, offence punishable under Section 498-
A, 307 r.w. 34 of IP Code was registered, and subsequently,
on death of Manisha offence under Section 302 of IP Code
was added. He had deputed PSI Mr.Noor Mohd. who was
recording the statement of Manisha. Initially, the dying
declaration of Manisha was received to them from
Tophkhana Police Station, Nagar. Manisha died on 27th
June, 2011. Thereafter, he visited the spot of incident on
22nd June, 2011 and prepared spot panchanama in presence
of two panchas. He recorded statement of PW-2 Shankar
as per his say. He also recorded his supplementary
statement. He stated that, portion marked 'A' in the
statement of PW-2, and also portion marked 'B' and 'C', his
statement are as per his say. From the spot ASI Konde
seized white colour plastic can of five liters, one nylone sari,
burnt blouse, piece yellow colour burnt pitty coat and
match box. Thereafter, inquest panchnama was carried out.
Map was drawn.
43] During his cross examination, he stated that,
Police came to know about the incident on the basis of
dying declaration at Exhibit-24. The entry of above dying
declaration was taken in Police Station Diary. Similarly, the
537.2012 Cri.Appeal.odt
statement recorded by PSI Mr.Noor Mohd. was taken in
Police Station as entry No.35 on Exh.29. Except Exhibit-24
and 29, the Police Station has not received any information
about the incident. He further stated that, it is true that, as
per entry No.17, no cognizable offence was transpired,
therefore, they did not record offence at that time. He did
not personally record the statement of Manisha. The
accused persons were arrested from the Hospital itself on
21st June, 2011. He has not mentioned about condition of
door of the house in the spot panchanama.
44] The defence examined Usha Shankar Waman
as DW-1 [defence witness]. In her deposition, she stated
that, she is residing at Gahukhel. Deceased Manisha was
residing near her house at the distance of 30-40 feet. She
knows other accused also. Manisha died due to burning
incident took place in between 10.00 to 10.50 a.m. At that
time, she was in her house, she heard shouts of Manisha
and also of accused Nos. 1 to 3. When she rushed towards
house of Manisha, at that time accused Nos. 1 to 3 were
also running towards the house of Manisha. When they
reached near house, the door of house was closed and
smoke was emitting from the door. At that time, accused
537.2012 Cri.Appeal.odt
No.1 kicked the door of the house and opened the door.
After opening door, she saw that, Manisha was burning. At
that time, accused No.1 took water in the pot from the tank
kept near house of Manisha and poured water on the
person of Manisha. They also poured water on the person
of Manisha. Thereafter, accused No.1 asked her husband to
bring a tempo. Thereafter, her husband brought Tempo
and Manisha was put in Tempo and taken to Nagar Hospital
and accused Nos. 1 to 3 also went with Manisha to Hospital.
At that time, accused no.4 had gone out of station.
Thereafter, her husband had gone to Ghatpimpri to inform
about the incident to the parents of Manisha.
This witness was cross examined by APP.
During her cross examination, she stated that, Manisha was
shouting loudly. Due to burn, Manisha sustained burn
injuries on face, chest, hands and stomach. Prior to the
incident, Manisha had not gone to her parental home. She
did not state to Police about the incident. Police came then
recorded her statement and statement of her husband.
She denied suggestion that, on inquiry with Manisha, she
raised fingers towards accused persons and told that, they
set her on fire. She further denied suggestion that, it did
537.2012 Cri.Appeal.odt
not happen that, after Manisha came to her matrimonial
home within few days, accused Nos.1 to 4 used to quarrel
with her and she used to hear the noise of said quarrel. It
did not happen that, when deceased used to meet her, she
used to tell her that, accused nos. 1 to 4 used to tell her
that, she does not know work and asked her to leave the
house and used to harass her. She specifically stated that,
it is not true that, accused Nos. 1 to 4 poured kerosene on
the person of Manisha and set her on fire and killed her.
When she was re-examined, she stated that, she came to
know about statement of her, recorded by Police after
charge-sheet is filed. She had complained to Dy. S.P. Ashti,
stating that, Police have not recorded her statement and
prepared her statement on their own accord. She denied
suggestion that, accused Nos.1 to 4 poured kerosene on
the person of Manisha and set her on fire and killed her.
Since she is neighbourer of Manisha, her evidence assumes
importance.
45] On re-appreciating the entire evidence, in the
light of discussion in the foregoing paragraphs, the dying
declaration at Exhibit-24 recorded by the PW-3, Special
Judicial Magistrate, cannot form basis for conviction of the
537.2012 Cri.Appeal.odt
accused. It has come in the evidence of PW-5 and PW-6
that, they could not reach to the conclusion that, the death
was homicidal, accidental or suicidal. The Bombay High
Court while considering the prosecution case based upon
dying declaration, in the case of Shakuntalabai
Khairuprasad Joshi and Anr. Vs. State of
Maharashtra3 held that, the burn injuries received by the
deceased could be accidental, suicidal or homicidal, the
prosecution is required to establish homicidal death by
bringing positive evidence on record. Therefore, in the
present case also, it was necessary for the prosecution to
bring on record the positive evidence so as to establish the
homicidal death.
Upon perusal of the evidence of PW-7 i.e. father
of Manisha, it is abundantly clear that, while recording the
dying declarations he was present. PW-7, in his cross
examination stated that, he told Manisha as to how
statement has to be given to the person, who is recording
the dying declaration. Therefore, the dying declaration
recorded by PW-3 appears to be result of tutoring by PW-7.
The Bombay High Court in the case of Sunil Kashinath
3 2011 Cri.L.J. 1819
537.2012 Cri.Appeal.odt
Raimale Vs. State of Maharashtra4, held that, in case of
presence of relatives, possibility of tutoring cannot be ruled
out and in that case, the dying declaration cannot be free
from doubt.
The evidence of the defence witness namely
Usha w/o. Shankar Waman also makes it clear that, the
accused persons were not in the house wherein the incident
had taken place, but they came running at the place of
incident and tried to extinguish the fire by opening the door
and pouring water on the person of Manisha. Therefore,
the dying declaration at Exhibit-24 cannot form basis of
conviction. So far dying declaration at Exhibit-29 is
concerned, we have discussed in detail in the foregoing
paragraphs that, why the said dying declaration cannot be
believed. The evidence of DW-1 i.e. Usha w/o. Shankar
Waman, unequivocally indicates that, the accused were not
seen in the house in which the incident had taken place,
nor they were involved in the incident as alleged by the
prosecution. Her evidence deserves acceptance since she
resides nearby house where the incident had taken place.
4 2006 Cri.L.J.589
537.2012 Cri.Appeal.odt
46] In that view of the matter, the benefit of doubt
deserves to be given to the Appellants. Accordingly
Criminal Appeal is allowed. The conviction and sentence of
the Appellants is hereby quashed and set aside, and the
Appellants are acquitted of the offences with which they
were charged and convicted. Fine, if any, paid by the
Appellants be refunded to them. Since the Appellants are in
jail, they be released forthwith, if not required in any other
case.
Sd/- Sd/-
[A.I.S.CHEEMA, J.] [S.S. SHINDE, J.]
DDC
