Parvatibai W/O Kantrao Warle vs The State Of Maharashtra
2021 Latest Caselaw 13782 Bom

                               1                 CR.APPEAL-650-2014

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                       CRIMINAL APPEAL NO. 650 OF 2014


Parvatibai w/o Kantrao Warle,
Age : 47 years, Occupation :Nil,
R/o Mokli, Residing at Ganeshnagar,
Dharmabad, Taluka Dharmabad,
District Nanded, At present she is in jail              ...Appellant
                                                  (original accused No.2)
         Versus

State of Maharashtra,
Through Police Station Officer
Police Station Kundalwadi,
Taluka Biloli, District Nanded                         ...Respondent
                                                   (original complainant)

Mr N.K. Kakade, Advocate for Appellant
Mr Shashibhushan P. Deshmukh, A.P.P. for Respondent-State


                               CORAM : V.K. JADHAV AND
                                       SHRIKANT D. KULKARNI, JJ.

DATE : 24th SEPTEMBER, 2021

ORAL JUDGMENT : (PER SHRIKANT D. KULKARNI, J.)

1. The appellant/original accused No. 2, who is convicted for the

offence punishable under section 302 of the Indian Penal Code and

sentenced to suffer imprisonment for life by the Additional Sessions

Judge, Biloli in Sessions Case No. 53 of 2011 vide Judgment and order

dated 16.10.2014, has preferred this appeal under section 374(2) of the

Code of Criminal Procedure on various grounds.

2. The facts of the prosecution case in narrow compass are as

under :-

 a)           On 02.04.2011, Sarojana w/o Kiran Warle, resident of Mokli





                                2                CR.APPEAL-650-2014

was admitted in I.C.U. Burns Ward at Apollo Hospital, Nanded. She had

sustained 92% burn injuries. Doctor from Apollo Hospital informed to

Vazirabad Police Station, Nanded about such MLC case. One Police Head

Constable, namely, Gautam Belaji Kamble, attached to Vazirabad Police

Station was deputed. He rushed to Apollo Burns Hospital at Nanded and

met with the Doctor and informed that he wanted to record statement of

Sarojana (since deceased).

b) Police Head Constable, Kamble recorded the statement of

Sarojana w/o Kiran Warle after taking medical opinion from the doctor.

Sarojana disclosed to Police Head Constable Kamble that on 30.03.2011,

there was wedding of her niece Ms Archana and after wedding, she came

to her matrimonial house at Mokli along with her family members. She

further disclosed that there was quarrel between her and her sister-in-law/

accused No. 2 - Parvatibai and her husband/accused No. 1 - Kantrao on

account of return of her gold ornaments which they had taken. She was

even subjected to beating in the said quarrel when she insisted for the

said gold ornaments. She further disclosed that on 02.04.2011 at about

10.00 a.m. she was present in her matrimonial house. Her brother-in-law

and sister-in-law accused Nos. 1 and 2 (Kantarao Ramrao Warle and

Parvatibai Kantarao Warle) were also present. Sarojana asked them to

effect partition of landed property and so also, put forth her demand of her

gold ornaments. She disclosed that appellant/accused No.2 poured

kerosene on her person and after igniting the match stick, thrown towards

her, but the match stick blow out. The appellant/accused No. 2 again

ignited another match stick and thrown towards Sarojana and set

3 CR.APPEAL-650-2014

her ablaze. Sarojana raised hue and cry. In response, neighbouring

persons Suresh Warle, Govind Warle, Ushabai Warle rushed to the spot of

incident and extinguished the fire by putting quilt on her person as well as

pouring water. The neighbouring persons put injured Sarojana in Auto

Rickshaw and brought her to Government Medical Hospital at Biloli, and

thereafter, Ramchandra Warle, his wife and Shriram Madhav Lakde

brought her to Apollo Hospital at Nanded and admitted there for treatment.

c) On the basis of statement given by Sarojana w/o Kiran Warle,

Crime No. 14/2011 came to be registered at Vazirabad Police Station,

Nanded for the offence punishable under section 307 read with section 34

of I.P.C. The investigation was entrusted to P.S.I. Devde.

d) On the very day i.e. on 02.04.2011, Mr Datta Navghare, Special

Judicial Magistrate for Nanded District, upon receiving request letter from

Police, rushed to Apollo Hospital, Nanded. He met with doctor Kalambkar

and informed that he wanted to record statement of Sarojana Warle.

Doctor Kalambkar examined the patient in his presence and certified that

patient is conscious and he may record her statement. Accordingly,

Mr Datta Navghare recorded the statement of Sarojana in the form of

dying declaration. Sarojana narrated the same incident before the Special

Judicial Magistrate and the same was reduced into writing.

e) The Investigating Officer PSI Devde paid visit to the scene of

offence and prepared the panchanama in presence of two panch

witnesses and seized kerosene Can and match stick from the scene itself.

After transfer of PSI Devde, the remaining part of the investigation was

4 CR.APPEAL-650-2014

handed over to another Police Officer. Sarojana succumbed to burn

injuries on 25.04.2011. After inquest panchanama, the dead body of

Sarojana was sent to Government Medical College and Hospital at

Nanded. After postmortem examination, doctor opined that Sarojana died

due to "Septicemia" due to burns.

f) After completion of investigation, the charge sheet came to be

filed against the appellant and her husband/original accused No.1 for the

offence punishable under section 302 read with section 34 of I.P.C.

g) The appellant and her husband/original accused No.1 were

committed to the Court of Sessions Division at Biloli on 10.11.2011 by the

Judicial Magistrate First Class, Dharmabad for standing their trial under

section 302 of the I.P.C. The learned Additional Sessions Judge at Biloli

framed the charge against the appellant and her husband for the offence

punishable under section 302 read with section 34 of the I.P.C. vide exh.

No. 4. After the prosecution produced 7 witnesses, the trial court vide its

judgment and order dated 16.10.2014 held the appellant/original accused

No.2 guilty and convicted her under section 302 of the I.P.C. On the facts

and circumstances of the case, the appellant was awarded life

imprisonment. However, husband of the appellant/original accused No.1

Kantarao Ramrao Warle came to be acquitted from the charge under

section 302 read with section 34 of the I.P.C. and he was set at free.

3. We have heard Mr N.K. Kakade, learned counsel for the

appellant/original accused No. 2 and Mr Shashibhushan Deshmukh,

learned A.P.P. for the State/Respondent at length. We have also gone

5 CR.APPEAL-650-2014

through the evidence of prosecution witnesses and two dying declarations

as well and stock of documentary evidence with the able assistance of the

learned counsel for the appellant and learned A.P.P. for the State.

4. Mr N.K. Kakade, learned counsel for the appellant/original

accused No.2 vehemently submitted that the case is entirely based upon

the dying declaration. There are two dying declarations in the case in

hand. One dying declaration is at exh. 13 which was treated as F.I.R. and

put criminal law in motion. The another dying declaration is at exh. 19

recorded by the Special Judicial Magistrate. He submitted that both the

statements in the form of dying declarations were recorded on the same

day itself. He invited our attention to the evidence of PW No. 3, Police

Head Constable Kamble, who has recorded the first dying declaration and

submitted that said dying declaration is not reliable. He invited our

attention to the cross-examination of PW No. 3, Police Head Constable

Kamble and pointed out that there is over writing in respect of time and

date mentioned in the statement. He further submitted that thumb mark of

the deceased is not attested. He submitted that the deceased had

sustained 92% burn injuries and she was not in a position to talk. He

further pointed out that first dying declaration at exh. 13 indicates that

contents of the same were not read over to the deceased and she

admitted the same. In view of the above deficiencies, the dying declaration

vide exh. 13 is very much doubtful and not safe to rely upon.

5. Mr Kakade, learned counsel further invited our attention to

another dying declaration vide exh. 19 which was recorded subsequently

6 CR.APPEAL-650-2014

by the Special Judicial Magistrate. He submitted that dying declaration

vide exh. 19 nowhere indicates as to what was the condition of the patient

before recording her statement by the Special Judicial Magistrate.

Mr Kakade, learned counsel strenuously argued that both the dying

declarations do not inspire confidence of the Court. The trial court has

committed an error in accepting dying declarations. It is unsafe to rely

upon both dying declarations in view of the material brought on record

during cross-examination of respective witnesses, who recorded those

statements in the form of dying declarations.

6. Mr Kakade, learned counsel further submitted that PW No.1

Chandar Nagnath Kawde, and PW No.2 Deorao Madhavrao Warle vide

exh. 9 and 10 respectively, who were the panch witnesses to the spot and

seizure panchanama have turned hostile and not supported to the

prosecution case. PW No. 5 Madhavrao Lakde vide exh. 22 happens to be

the father of the deceased, who has not even supported the prosecution

case. PW No. 6 Shriram Lakde, who happens to be brother of the

deceased has also not supported to the prosecution case. It is brought on

record through the testimony of PW No. 6 Shriram Lakde that condition of

Sarojana was not good when he had been to the hospital to see her and

she was not in position to talk. He further pointed out that the neighbouring

persons, who had extinguished the fire are not examined by the

prosecution and no explanation is coming forth. He further pointed out that

concerned doctor, who has examined the patient even not examined and

as such, dying declaration relied upon by prosecution cannot be acted

upon. The trial court has committed an error in convicting the

7 CR.APPEAL-650-2014

appellant/original accused No.2. The present appellant needs to be set at

free from the charge of murder on the same set of facts and the evidence

when original accused No.1 was set at free from the charge of murder. He

submitted that the findings recorded by the learned trial Judge are

incorrect in the eye of law. The conviction needs to be quashed and set

aside when the evidence in the form of dying declaration is found to be

unworthy of credence.

7. Per contra, Mr Shashibhushan Deshmukh, learned A.P.P. for

the State/respondent forcefully submitted that even though, both the

panch witnesses, father and brother of the deceased have turned hostile,

not any way fatal to the prosecution case. The case is entirely rest upon

the dying declaration. There are two dying declarations on record vide

exh. 13 and 19. The prosecution has examined both the witnesses who

have recorded the statements of deceased. Both the dying declarations

speak itself that before recording the statement, the concerned doctor has

examined the patient and certified that patient was fit and conscious to

record the statement. Accordingly, both statements were recorded. The

concerned witnesses who have scribed the dying declarations have also

stated that they have satisfied themselves about the fitness of the patient

before recording of the statement and after satisfying themselves about

fitness of the patient, they have recorded statements of the deceased. He

submitted that both the dying declarations are consistent, and there is no

defect at all. Both the statements inspire confidence of the Court. The trial

court has rightly relied upon the dying declarations and accordingly, after

appreciating the same arrived at conclusion that appellant/accused No.2

8 CR.APPEAL-650-2014

is the person responsible for the death of Sarojana. Sarojana was alive for

more than 22 days after the incident which speaks that she was conscious

and oriented when her statements were recorded on the date of incident

i.e. 02.04.2011. There is no scope to take doubt about the dying

declarations. He submitted that the trial court has rightly appreciated the

evidence by going through the evidence of respective witnesses and

accordingly, convicted the appellant accused No.2 who is author of

homicidal death of Sarojana. He submitted that the conviction needs to be

upheld.

8. We have considered the submissions advanced by the learned

A.P.P. for the State and Mr Kakade, learned counsel for the

appellant/original accused No.2.

9. Mr Kakade, learned counsel for the appellant/accused No.2 has

relied upon the following stock of citations :-

(i) Amarsingh Vs. State of M.P. reported in 1996 CRI.L.J 1582

(ii) Vilas @ Bandu Punjabrao Misal Vs. State of Maharashtra reported in 2016 ALL MR (Cri) 3828

(iii) Sitaram Nana Sarvade & Anr. Vs. The State of Maharashtra reported in 2016 ALL MR (Cri) 1049

(iv) Paparambaka Rosamma and others Vs. State of A.P.

reported in AIR 1999 SC 3455

(v) Paparambaka Rosamma Vs. State of A.P. 1999 AIR SC 3455

(vi) Purshottam Chopra and Ors. Vs. State (Govt. of NCT Delhi) Criminal Appeal Nos. 194-195 of 2012 dated 07.01.2020.

9 CR.APPEAL-650-2014

10. At the outset, it is necessary to mention here that appellant and

her husband/original accused No.1 Kantrao Ramrao Warle, both were put

on trial for the offence punishable under section 302 read with section 34

of I.P.C. The learned trial Judge has convicted the appellant/original

accused No.2 - Parvatibai alone for the offence punishable under section

302 of I.P.C. Whereas original accused No.1 - Kantrao Ramrao Warle

came to be acquitted from the charge of murder. The State seems to have

not preferred any appeal against the acquittal of original accused No.1-

Kantrao Ramrao Warle.

11. The inquest panchanama vide Exh No.11, post mortem report

vide exh. No. 15 are not much disputed. It is also not in dispute that

Sarojana had sustained 92% burn injuries in the incident occurred on

02.04.2011 in the morning at about 10.00 a.m. She succumbed to burn

injuries on 25.04.2011. As per doctor's opinion, the probable cause of

death in this case is "Septicemia due to burns".

12. PW No. 1 Chandar and PW No. 2 Deorao vide exh. 9 and 10

respectively are the panch witnesses on the spot panchanama and

seizure of articles from the scene of offence have turned hostile and not

supported the prosecution case. PW No. 5 Madhav Lakde and PW No. 6

Shriram Lakde, who are father and brother of deceased have turned

hostile and not supported the prosecution case. The prosecution

machinery has examined in all seven witnesses and out of them, four have

turned hostile.

10 CR.APPEAL-650-2014

13. The case is entirely rest upon dying declaration. The law on

dying declaration is now well settled. The principles relating to admission

and acceptability of the statement made by the victim representing the

cause of death shall refer to as dying declaration are well settled and few

doubts as regards pre-requisites for acceptability of dying declaration were

also put at rests by the Constitution Bench of the Hon'ble Supreme Court

in the case of Laxman Vs. State of Maharashtra reported in (2002) 6

SCC 710. The conviction can be based on dying declaration of the

deceased. It it is found to be truthful, voluntary and trustworthy, no

corroboration is necessary. Mr Kakade, learned counsel for the appellant

has referred recent citation of the Hon'ble Supreme Court on the subject of

dying declaration in case of Purshottam Chopra and Ors. Vs. State

(Govt. of NCT Delhi) (supra). Even though Mr Kakade, learned counsel

for the appellant has placed reliance on other citations referred above, the

decision of the Constitution Bench of the Hon'ble Supreme Court in case

of Laxman Vs. State of Maharashtra still holds the field and the same is

followed by the Hon'ble Supreme Court, in a recent case of Purshottam

Chopra and Ors. Vs. State (Govt. of NCT Delhi) referred by Mr Kakade,

learned counsel for the appellant. As such, there is no necessity to refer

other citations referred by Mr Kakade.

14. In case of Purshottam Chopra and Ors. Vs. State (Govt. of

NCT Delhi), the Hon'ble Supreme Court after considering the Constitution

Bench decision in case of Laxman Vs. State of Maharashtra and other

various decisions given earlier with some addition laid down principles

relating to recording of dying declaration and its admissibility and

11 CR.APPEAL-650-2014

reliability, could be usefully summed up as under :-

2.1. For what has been noticed hereinabove, some of the principles relating to recording of dying declaration and its admissibility and reliability could be usefully summed up as under :-

(i) A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the Court.

(ii) The Court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination.

(iii) Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declrant or of like nature, it should not be acted upon without corroborative evidence.

(iv) When the eye-witnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail.

(v) The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement.

vi) Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying

12 CR.APPEAL-650-2014

declaration.

vii) As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement.

viii) If after careful scrutiny, the Court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction of its basis even without corroboration.

15. In the background of citations in the case of Laxman Vs. State

of Maharashtra and recent citation in case of Purshottam Chopra and

Ors. Vs. State (Govt. of NCT Delhi) (supra) of the Hon'ble Supreme

Court, we have to examine the dying declarations relied upon by the

prosecution in this case vide exh. 13 and 19 respectively.

16. First we will examine the dying declaration recorded by PW No.

3, Police Head Constable Kamble, which is vide exh. 13. It was the first in

time recorded on 02.04.2011, which is treated as First Information Report.

On careful scrutiny of the statement/dying declaration of Sarojana vide

exh. 13, it is evident that doctor has put endorsement in the margin of the

statement which reads thus -

"Patient is fully conscious oriented with time, space person for statement which was started at 2.00 p.m. and completed at 2.30 p.m. today on 02.04.2011."

13 CR.APPEAL-650-2014

17. It indicates that concerned doctor was present there while

recording the statement/dying declaration throughout and certified about

consciousness of the patient to give the statement. Certification of doctor

about patient's condition and fitness to record the statement is a rule of

caution and it is not mandatory requirement of law. Mr Kakade, learned

counsel for the appellant attempted to show that the said statement was

not read over to the deceased after completion. Be that as it may, there is

no animus between PW No. 3, Police Head Constable Kamble and the

appellant/accused No. 2. No such material is brought on record through

the cross-examination of Police Head Constable Kamble to take doubt

about his exercise of recording of statement of deceased and improvising

the case of the prosecution. We therefore, do not find any force in that line

of submission made by Mr Kakade, learned counsel for the

appellant/accused No. 2.

18. Now, coming to overwriting in the statement vide exh. 13

pertaining to date and time. PW No. 3, Police Head Constable Kamble,

while facing the cross-examination, admitted that there is overwriting in the

statement in respect of time and date and thumb of the deceased is not

attested. We have perused the dying declaration/statement of the

deceased vide exh. 13. There is overwriting in respect of the first figure of

the date and first word of time. However, in the last para of the statement/

dying declaration, the date of incident as 02.04.2011 and time about 10.00

a.m. in the morning are mentioned which has cleared the position. It is not

the case of the defence that alleged incident had not occurred on

02.04.2011 in the morning and occurred on some other date and time. It

14 CR.APPEAL-650-2014

was attempted to show by the defence that it was a suicidal case and

practically not disputed the date and time of the incident. We therefore, do

not find any merit in that line of submissions made by the Mr Kakade,

learned counsel for the appellant/accused No.2.

19. So far as obtaining right leg thumb impression of the deceased

on dying declaration is concerned, it is evident that same is not attested

either by the Police Head Constable Kamble or anybody else. Section 32

of the Evidence Act nowhere provides that if thumb impression of a hand

or leg is obtained, it must be attested by the scribe or any other person. In

absence of any mandatory requirement in view of the provisions of section

32 of the Evidence Act, no more importance can be given to that aspect

regarding absence of attestation of right leg thumb impression of the

deceased.

20. On careful scrutiny of the statement/dying declaration of the

deceased and the testimony of PW No. 3, Police Head Constable Kamble

vide exh. 12, we noticed that the Police Head Constable Kamble has

reproduced the narration given by the deceased while recording the

statement. There is no discrepancy at all. The Police Head Constable

Kamble, who was on duty at Railway Station Chowki, Vajirabad Police

Station, Nanded, on instructions rushed to the Apollo Burns Hospital at

Nanded and after taking medical opinion of the concerned doctor, seems

to have recorded the statement of the deceased according to her

narration. The statement of dying declaration vide exh. 13 recorded first in

time is found without any deficiency. It inspires confidence of the Court.

15 CR.APPEAL-650-2014

The trial Court has rightly accepted the same by assigning the reasons in

view of the landmark decision of the Hon'ble Supreme Court in the case

of Laxman Vs. State of Maharashtra. We do not find any error on the

part of the learned trial Judge while accepting the said dying declaration

vide exh. 13.

21. Now, coming to another dying declaration vide exh. 19 recorded

by PW No.4, Datta Navghare, Special Judicial Magistrate. On perusing the

same, it is noticed that Special Judicial Magistrate for Nanded District, has

recorded the dying declaration of the deceased in question-answer form

after taking medical opinion from the concerned doctor. Before recording

the dying declaration, Special Judicial Magistrate seems to have obtained

the endorsement from the concerned doctor which reads thus -

Patient is fully conscious oriented with time, space and person to give statement to Magistrate which has started at 3.00 p.m. on 02.04.2011.

22. Dr. Kalambkar has also put his signature below the

endorsement. The Special Judicial Magistrate Mr Datta Navghare has

also put his endorsement that recording was commenced at 3.00 p.m. On

perusing the dying declaration vide exh.19, more particularly, question

regarding the incident, it is found that the deceased has narrated the

same incident. The dying declaration seems to have concluded at 3.30

p.m. on 02.04.2011. Doctor has also put his endorsement after

concluding the work of recording of statement with following

endorsement.

16 CR.APPEAL-650-2014

Patient was fully conscious throughout entire statement which completed at 3.30 p.m.

23. It is further evident that the contents of the dying declaration

were read over to the deceased and thereafter, Special Judicial

Magistrate Mr Datta Navghare seems to have obtained right leg thumb

impression of the deceased since her hand fingers were burnt. Further, it

is evident from the testimony of PW No.4, Special Judicial Magistrate, Mr

Datta Navghare that before recording the statement, he has introduced

himself to the deceased. He got satisfied himself that patient Sarojana

was in a fit state of mind for recording her statement. After getting

satisfied himself and after obtaining the certification from the doctor about

the fitness, PW No.4, Special Judicial Magistrate, Mr Datta Navghare has

recorded the dying declaration which is at exh.19.

24. Mr Kakade, learned counsel for the appellant/accused No.2

has attempted to point out that first endorsement given by Dr. Kalambkar

nowhere speaks when statement was commenced. On going through the

endorsement of the doctor which is at exh.19, it is very much clear that

Dr. Kalambkar has mentioned that statement was commenced at 3.00

p.m. on 02.04.2011. We therefore, do not find any merit in that line of

argument advanced by Mr Kakade, learned counsel for the

appellant/accused No.2. Mr Kakade, learned counsel attempted to point

out that there is no evidence regarding condition of the patient before

recording of the statement/dying declaration vide exh.19. The statement/

dying declaration vide exh.19 itself speaks that patient was fully

conscious and oriented at the time of recording of the statement at 3.00

17 CR.APPEAL-650-2014

p.m. She was throughout conscious and fit while recording the statement

which was completed at 3.30 p.m. on 02.04.2011. We therefore, again do

not find any merit in the submissions advanced by Mr Kakade, learned

counsel for the appellant/accused No.2.

25. Mr Kakade, learned counsel for the appellant vehemently

submitted that the concerned doctors are not examined by the

prosecution, who had certified the patient about the fitness to record the

statement. The legal position as discussed above in case of Laxman Vs.

State of Maharashtra (supra) made it clear that certification of doctor

about fitness of the patient to record the statement is a rule of caution

and it is not mandatory requirement of law. Furthermore, it is important to

note that in this case, both the dying declarations were recorded by the

concerned witnesses on 02.04.2011. Sarojana did not succumb to burn

injuries immediately after recording the statement. Sarojana succumbed

to burn injuries on 25.04.2011 at about 20.00 p.m. Therefore, it is clear

that Sarojana died after more than 22 days of recording of her statement.

It is brought on record that Sarojana was conscious and oriented while

recording both the statements. Even though the concerned doctors are

not examined by the prosecution, who had certified about fitness of the

patient not any way fatal to the prosecution when there is no mandatory

requirement of law in view of the provisions of section 32 of the Evidence

Act. Certification of doctor is merely a rule of caution and not mandatory

requirement of law as discussed above.

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26. On careful scrutiny of dying declarations/statements vide exh.

13 and 19, it is revealed that both dying declarations are found voluntary.

The statements/dying declarations were not the result of tutoring,

prompting or imagination. It is evident from the statements/dying

declarations itself that the deceased was in a fit state of mind at the time

of making the statements. The testimony of PW No. 3 and PW No. 4,

clearly speaks that deceased was in a fit and conscious state of mind

while giving the statement and she was capable of making the statement.

Even though Sarojana had sustained 92% burn injuries, she survived for

more than 22 days which itself speaks about credibility of the dying

declarations. On careful examination of both dying declarations vide exh.

13 and 19, it is found that both are coherent and consistent and inspire

confidence of the Court. We do not find any material deficiency in both

the dying declarations. The narration given in both the statements or

dying declarations are regarding incident in the same tone pointing out

the involvement of the appellant/original accused No. 2 while setting

ablaze Sarojana after pouring kerosene in the matrimonial house.

27. We do not find any merit in the argument advanced by Mr

Kakade, learned counsel for the appellant/accused No.2 questioning

reliability of the statements of dying declarations. Both the dying

declarations are found worthy of credence and need to be believed when

both the dying declarations inspire confidence in the Court and both are

found consistent.

19 CR.APPEAL-650-2014

28. Mr Kakade, learned counsel for the appellant/accused No.2

submitted that father and brother of the deceased (PW No. 5, Madhavrao

and PW No. 6, Shriram) have turned hostile and not supported the

prosecution case. PW No. 6, Shriram has admitted that he met with his

sister in the hospital and she was not in a position to speak. However,

that piece of evidence of PW No. 6, Shriram, is found unworthy of

credence. When the evidence of scribe of both the statements in the form

of dying declarations coupled with medical certification speak that the

deceased was conscious and oriented and fit to give statement as

pointed out earlier, Sarojana died after about 22 days of recording of her

statement. It is one more important factor to disbelieve above referred

piece of evidence of PW No. 6, Shriram.

29. In view of the principles laid down by the Hon'ble Supreme

Court in case of Purshottam Chopra and Ors. Vs. State (Govt. of NCT

Delhi), (supra) held that if dying declaration inspires confidence of the

Court, conviction can be based solely on the basis of dying declaration

even without corroboration. As such, even though PW No. 5 Madhavrao

and PW No. 6, Shriram, who are father and brother of the deceased

though turned hostile, not anyway fatal to the prosecution case when the

dying declarations on record inspire confidence of the Court, and

secondly, when there is no cloud nearby. The learned trial Court has

considered the legal position about recording of conviction on the sole

basis of dying declaration by placing reliance in the case of Laxman Vs.

State of Maharashtra (supra). The learned trial court has considered all

the points raised by the defence side and rightly held that both dying

20 CR.APPEAL-650-2014

declarations inspire confidence of the Court and free from any doubt and

as such, awarded the sentence against the appellant/accused for

committing murder of her sister-in-law Sarojana in view of section 302 of

I.P.C. and sentenced to suffer life imprisonment in view of the facts of the

case in hand.

30. We are in agreement with the findings recorded by the learned

trial Court while convicting the appellant/accused No. 2 alone under

section 302 of I.P.C. in view of her complicity in the commission of

murder of her sister-in-law by setting her ablaze after pouring kerosene in

the matrimonial house. We do not find merit in the appeal. The conviction

awarded by the trial court needs to be upheld at our hands in the appeal.

31. Needless to say that the appeal needs to be dismissed.

ORDER

The Criminal Appeal stands dismissed.

 [ SHRIKANT D. KULKARNI, J. ]                          [ V.K. JADHAV, J. ]




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