Bombay High Court

Janabai Vasant Raut vs The State Of Mah on 17 January, 2022

Bench: V.K. Jadhav, Sandipkumar Chandrabhan More

                                    1             JUDGMENT CRI. APPEAL NO. 614-14

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   BENCH AT AURANGABAD

                     CRIMINAL APPEAL NO. 614 OF 2014

1.       Janabai Vasant Raut,
         age: 32 years, Occ: Housewife,
         R/o Dewla Punarwasan,
         Selu, District Parbhani.

2.       Arjun Anjiram Raut,
         age: 28 years, Occ: Washerman,
         R/o Shinde-Takli; at present
         R/o Dewla Punarwasan,
         Selu, District Parbhani.                               Appellants
                                                                (Orig. accused
                                                                 Nos. 2 & 9)

                  Versus

         The State of Maharashtra,
          through Selu Police Station,
         Taluka Selu, District Parbhani.                        Respondent

                                    .....
                  Mr. S. G. Ladda, advocate for the appellants.
                  Mr. R. D. Sanap, APP for Respondent-State.
                                    ......

                                    CORAM : V. K. JADHAV AND
                                            SANDIPKUMAR C. MORE, JJ.
                                          .....


                  RESERVED ON   : 3rd December, 2021.
                  PRONOUNCED ON : 17th January, 2022.




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                                    2      JUDGMENT CRI. APPEAL NO. 614-14

JUDGMENT (Per Sandipkumar C. More, J.) :

1 The present appellants, who are original accused

nos. 2 and 9, have preferred this appeal against the judgment

and order dated 30.08.2014 in Sessions Trial No 32/2013,

passed by the Extra-Joint Ad hoc Additional Sessions Judge,

Parbhani, (hereinafter referred to as "the learned trial Court").

Under the impugned judgment, present appellants - accused

have been convicted for the offence punishable under Section

302 read with Section 34 of the Indian Penal Code and

sentenced to undergo life imprisonment and to pay fne of

Rs.1000/- each, in default, to suffer further imprisonment for

three months.

2 Initially, there were 9 accused, including present

appellant no.2 i.e. husband of deceased Sheetal, his parents,

three brothers and their respective wives. All of them were

charged for the offence punishable under Sections 498-A and

302 read with Section 34 of the Indian Penal Code. However,

the learned trial Court has convicted only present appellants,

being accused nos. 2 and 9 under Section 302 read with 34

of IPC.

                                    3    JUDGMENT CRI. APPEAL NO. 614-14

3                According to the prosecution, Sheetal, who was

wife of present appellant no.2, was admitted to Government

Hospital, Parbhani on account of 100% burn injuries. Dr.

Shekhar Deshmukh i.e. the Medical Offcer attached to the

said hospital, after having admitted Sheetal in the burnt

patients' ward, issued MLC letter to the Police Out-Post

within the premises of the said hospital. Police Head

Constable Mr. Kurundkar of the said Police Out-post, visited

the said ward along with Dr. Deshmukh and after seeking

opinion of the doctor about the condition of Sheetal, recorded

her statement. As per the story narrated by Sheetal, it was

disclosed that she was residing at Selu and prior to

25.09.2012, she had gone to the place of her matrimonial

home at Shinde Takali. At that time, present appellants and

other accused subjected her to ill-treatment on the count that

they were not offered feast in the nature of " dhonde jewan"

and that she did not brought money from her parental house.

On 24.09.2012, at about 9.00 p.m., when the present

appellants and husband of appellant no.1 were present in the

house, appellant no.1 poured kerosene on her person and

appellant no.2 threw ignited matchstick on her person and

4 JUDGMENT CRI. APPEAL NO. 614-14

set her ablaze. When she started raising shouts, appellant

no.2 initially went out but then in apprehension that the

house might catch fre, started extinguishing the said fre.

According to Sheetal, other accused had also subjected her to

physical and mental ill-treatment as she failed to bring

money from her parental house and, as such all the accused

attempted to commit her murder. On the basis of the said

statement, Crime No. 162/2012 was initially registered in

Selu Police Station for the offences punishable under Sections

498A and 307 read with Section 34 of the Indian Penal Code.

After recording said statement, Police Head Constable Mr.

Kurundkar also made contact with Naib Tahsildar Mr.

Kolgane and requested him to record dying declaration of

Sheetal. Said Naib Tahsildar immediately rushed to the

hospital and on receiving request letter from Police Head

Constable Mr. Kurundkar, recorded dying declaration of

Sheetal after she was examined by Dr. Deshmukh. However,

just after recording of second dying declaration, Sheetal

succumbed to the burn injuries. After the inquest

panchanama was drawn over her dead body, Dr. Kala i.e. P.

W. 1 conducted autopsy on the dead body of Sheetal between

5 JUDGMENT CRI. APPEAL NO. 614-14

10.15 a.m. and 11.15 a.m. on 25.09.2012. It was transpired

that Sheetal died due to "hypovolemic shock due to 100%

burns".

4 A. P. I. Rathod i.e. P. W. 2, attached to Selu Police

Station, took over the charge of investigation and prepared

spot panchanama and also seized articles, including partially

burnt clothes, match box, matchstick and a kerosene

container from the spot. He then arrested all the accused

under separate arrest panchanamas after receiving other

papers from Police Head Constable Mr. Kurundkar. The

muddemal articles were sent to Chemical Analyser,

Aurangabad, through Police Head Constable Mr. Chaure with

a covering letter. On completion of the investigation, the

Investigating Offcer - A. P. I. Rathod submitted charge sheet

against all the accused persons under the aforesaid Sections.

5 The learned Judicial Magistrate, First Class, Selu

committed the case to the Court of Sessions, Division

Parbhani, as the offence under Section 302 of the Indian

Penal Code was exclusively triable by the Sessions Court.

6 JUDGMENT CRI. APPEAL NO. 614-14

The learned trial Court then framed charge as per Exhibit-36

against all the accused for the offence under Sections 302,

498-A read with Section 34 of the Indian Penal Code.

6 In order to establish the charge against accused

persons, the prosecution examined in all nine witnesses, out

of which, P. W. 1 Dr. Sandip Jaykumar Kala is the Medical

Offcer of Civil Hospital, Parbhani, who conducted post

mortem over the dead body of Sheetal. According to him,

Sheetal sustained 100% burn injuries and, therefore, her

death occurred due to hypovolemic shock. He also opined

that the burn injuries were ante mortem and the same were

possible due to use of kerosene. The post mortem report is at

Exhibit-51.

7 The next witness i. e. P. W. 2 Mr. Ramdas Kondiba

Kolgane is the Naib Tahsildar who has recorded dying

declaration of Sheetal as per Exhibit-54. He also proved the

contents of letter dated 25.09.2012 under which he sent the

said dying declaration to the Police Out-Post at Civil Hospital,

Parbhani. The third witness i.e. P.W. 3 Mr. Dnyaneshwar

7 JUDGMENT CRI. APPEAL NO. 614-14

Trimbak Zol appears to be neighbour of accused, who refused

to support the case of the prosecution. He is also a panch

witness to the spot panchanama Exhibit-59 and has proved

contents of the same.

8 P.W.4 Dr. Shekhar Shamrao Deshmukh is the

Medical Offcer, attached to Civil Hospital, Parbhani on

25.09.2012, who had an occasion to examine Sheetal before

and after recording of her dying declarations. The frst dying

declaration is at Exhibit-64. This witness has also proved the

contents of the letters dated 25.09.2012 at Exhibit-65 and

Exhibit-66, which were sent to Police Station Selu.

9 The next witness i.e. P. W. 5 Laxman Dattarao

Bansode is the maternal uncle of deceased Sheetal and he

has deposed about the ill-treatment to Sheetal at the hands

of all the accused and also deposed as to how Sheetal told

him about the cause of her burn injuries. P. W. 6 Kalpana

Balasaheb Shinde is the mother of deceased Sheetal and she

has also stated like P. W. 5 as to how Sheetal was ill-treated

and ultimately burnt.

                                  8       JUDGMENT CRI. APPEAL NO. 614-14




10             P. W. 7 A. P. I. Rathod is the Investigating Offcer

whose evidence we have discussed earlier in this judgment.

He has deposed about certain documents inclusive of letters,

forms and C. A. report at Exhibit-92, Exhibits-93 to 101,

letter to C. A. Exhibit-102 and C. A. report Exhibit-103. The

next witness of prosecution i. e. P.W.8 Police Head Constable

Anand Dhondopant Kurundkar, is the person, who had

recorded frst dying declaration of deceased Sheetal. He has

deposed about the entire procedure of recording the frst

dying declaration. The last witness of prosecution i.e. P.W. 9

Police Head Constable Mr. Sudhakar Bhagwan Chaure, is the

person, who had carried the muddemal articles to the C.A.,

Aurangabad, under the orders of the Investigating Offcer Mr.

Rathod. The prosecution then, under the pursis Exhibit-111

closed the evidence.

11 The learned trial Court recorded statements under

Section 313 of the Code of Criminal Procedure of all the

accused. The defence of accused, as appearing from their

statements and manner of cross examination, is of total

9 JUDGMENT CRI. APPEAL NO. 614-14

denial. Thereafter the learned trial Court, on considering the

entire material placed before it, has convicted the present

appellants, as mentioned above and acquitted the remaining

accused.

12 The learned Counsel for the appellants vehemently

argued that the conviction of present appellants recorded by

the trial Court, though is based upon circumstantial evidence

and two dying declarations, but those dying declarations are

clouded with doubtful circumstances and cannot be believed

as Sheetal was not in a ft condition to state so. The learned

Counsel has pointed out so many discrepancies and lacunae

in the evidence of prosecution while recording those dying

declarations. According to him, no medical papers were

brought on record to support the evidence or opinion of the

Medical Offcers. Further, when the accused did not inform

that deceased Sheetal was admitted in the hospital, how her

maternal uncle and mother directly went to see Sheetal in the

hospital. He further submitted that the dying declarations,

upon which the prosecution case rests, are doubtful and not

free from tutoring. The learned Counsel for the appellants, in

10 JUDGMENT CRI. APPEAL NO. 614-14

addition to his submissions at bar, also fled written notes of

arguments discussing the citations upon which he placed

reliance during the course of arguments. The citations relied

upon by the learned Counsel for the appellants are as under:

(a) Manohar Dadarao Landge Vs. State of Maharashtra, (2000) 2 Mah L J 3;

(b) Shaikh Bakshu and others Vs. State of Maharashtra; (2007) 11 SCC 269;

(c) State of Madhya Pradesh Vs. Dal Singh and others, (2013) 14 SCC 159;

(d) Surinder Kumar Vs. State of Haryana, (2011) 10 SCC 173;

(e) Ganpat Bakaramji Lad Vs. State of Maharashtra 2018 (2) Mah L J 786;

(f) Abdul Riyaz Abdul Bashir Vs. State of Maharashtra, 2012 ALL MR (Cri) 2188;

(g) Dadarao and others Vs. State of Maharashtra, in Cri. Appeal No. 221 of 2014;

(h) Mannu Raja and Another Vs. The State of Madhya Pradesh, (1976) 3 SCC 104;

(i) Balakram Vs. State of U.P., (1975) 3 SCC 219;

11 JUDGMENT CRI. APPEAL NO. 614-14

(j) K. Ramchandra Reddy and Another Vs. The Public Prosecutor, (1976) 3 SCC 618;

(k) P. Mani Vs. The State of T. N., (2006) 3 SCC 161;

(l) The State of Maharashtra Vs. Sanjay Rajhans, (2004) 13 SCC 314;

(m) Sanjay Sakharam Ahire Vs. The State of Maharashtra, (2013) SCC OnLine BOM 1390;

(n) Suresh Arjun Dodorkar Vs. The State of Maharashtra, 2005 ALL MR (Cri) 1599;

(o) Bhagirath Bhaurao Kanade Vs.State of Maharashtra, 1997(2) Mh.L.J.;

(p) Sau Kamlabai Haribhau Lastane Vs. State of Maharashtra, (2019) 2 AIR Bom R (Cri) 501;

(q) Madhukar Shrimant Mhaske and another Vs. The State of Maharashtra, 1998 SCC OnLine Bom 186;

          (r)  Laxman Vs.           State   of    Maharashtra,
          (2002) 6 SCC 710;

(s) Manohar Dadarao Landge Vs. State of Maharashtra, 2000(2) Mh.L.J. 3;

(t) State of Pubjab Vs. Gain Kaur and Another, 1998 SCC (cri) 942;

                                  12            JUDGMENT CRI. APPEAL NO. 614-14

13             On the contrary, the learned A. P. P. vehemently

argued that the conviction recorded against the present

appellants by the learned trial Court is based upon the dying

declarations which are free from every clouding

circumstances. According to him, there was no possibility of

tutoring to Sheetal at the time of recording her dying

declarations. He further submitted that the kerosene bottle

was found on the spot and the C. A. report is also suggestive

that the appellants have set ablaze deceased Sheetal. Thus,

in short, he submitted that the Medical Offcer has correctly

opined about the ft condition of deceased at the time of

giving statements about cause of death of Sheetal and the

same inspires confdence. He also relied upon the following

judgments by submitting written notes.

(i) Yousuf Badshah Shaikh Vs. State of Maharashtra (Criminal Appeal No. 498 of 2014, decided on 22.11.2021, by the Division Bench of this Court)

(ii) Purshottam Chopra & another Vs. State (Govt. of NCT Delhi), 2020 AIR (SC) 476;

13 JUDGMENT CRI. APPEAL NO. 614-14

(iii) Laxman Vs. State of Maharashtra, AIR 2002 SC 2973;

14. We have carefully gone through the submissions

made before us by the learned counsel for appellants and the

learned APP. We have also perused grounds raised by the

appellants in the appeal along with record and proceedings

and the case laws cited by rival parties.

15. It is the case of prosecution that the appellants

and other co-accused subjected Sheetal to cruelty and on the

fateful day set her ablaze by pouring kerosene on her person.

Though it has been revealed that the defence of the

appellants accused is of total denial, but from the suggestion

given to P.W.3 Dnyaneshwar Trimbak Zol, who appears to be

a neighbour of appellant no.2, it appears that the appellants

want to show that Sheetal in the ft of anger poured kerosene

on her person and set herself ablaze. Thus, the appellants-

accused have come with a suicidal case. Admittedly from the

evidence of P.W.1 Dr. Sandeep Jaykumar Kala, who had

conducted post-mortem over the dead body of Sheetal, it is

clearly evident that she died due to hypovolemic shock due to

14 JUDGMENT CRI. APPEAL NO. 614-14

100% burn injuries. Thus, it is to be found here whether her

death was caused by way of suicide or by way of homicide

owing to the act of the appellants.

16. The prosecution story is prominently based on two

dying declarations recorded by P.W.2 Ramdas Kondiba

Kolgane, who is a Naib Tahsildar and P.W.8 Anand

Dhondopant Kurundkar, who is a Police Head Constable.

The frst dying declaration was recorded by P.W.8 at the

earliest opportunity, is at Exhibit-64. Though the said dying

declaration appears to be recorded in the manner in which

police normally record statements of witness under Section

161 of Cr.P.C. during investigation but as Sheetal died with in

short period after recording the same and it is related to

cause of her death, the same has to be treated as dying

declaration. On perusal of the said dying declaration Exhibit-

64, it appears that Sheetal had told P.W.8 that she was

subjected to ill-treatment at the hands of present appellants

as well as at the hands of other accused on account of not

providing them "dhonde jewan" and not given dowry of

Rs.25,000/- in the marriage. She further stated that on

15 JUDGMENT CRI. APPEAL NO. 614-14

24/09/2021 when she was in house at Shelu, appellants

along with co-accused Vasantrao, who is husband of

appellant no.1, were present there and at that time appellant

no.1 poured kerosene on her and appellant no.2 ignited her

with match stick. She has also stated that when her Saree

caught fre, she started shouting, but her husband Arjun i.e.

appellant no.2 ignored her and sat out side. However, the

appellant no.2 husband in apprehension that house might

catch fre, tried to extinguish her. P.W.8, who recorded such

statement or the frst dying declaration Exhibit-64 has

categorically deposed that on the day of incident i.e.

24/09/20212 at about 23.45 hours he was attached to Police

Station Out post, which was within the premises of

Government Hospital at Parbhani and he had received the

MLC from the Medical Offcer, which is at Exhibit-66. He has

further deposed that as the said MLC was in relation to a

woman, who had sustained cent percent burn injuries he

though it necessary to record her statement. According to

him, he took the Medical Offcer to Burn-Ward and asked

relatives of Sheetal to stay out side while recording the

statement and then recorded the said dying declaration

16 JUDGMENT CRI. APPEAL NO. 614-14

Exhibit-64. He has specifcally stated that he started

recording the same only on confrming through Dr. Shekhar

Deshmukh i.e. P.W.4 that Sheetal was in ft state of mind for

making the statement. It appears that after recording her

statement, he read over the same to Sheetal and found to be

accepted by her being recorded correctly. He also obtained

thumb impression of her right hand and signed the same.

He has also taken care of securing remarks of doctor about ft

condition of Sheetal for giving statement before and after

recording the same. On perusal of said dying declaration

Exhibit-64, two endorsements of Medical Offcer appear

thereon. First before recording and second after concluding

the same.

17. Learned counsel for the appellants strongly

contended that in the said dying declaration Exhibit-64 it is

nowhere mentioned that it was read over to the deceased.

However, P.W. 8 has categorically deposed before the court

that the said statement was read over to the deceased and

she had also accepted it being recorded correctly and as per

her say. So we do not fnd any substance in such

17 JUDGMENT CRI. APPEAL NO. 614-14

submissions made on behalf of the appellants. On perusal of

cross-examination of this P.W. 8 though this witness has

admitted about serious condition of Sheetal while recording

the statement, but it appears that the said dying declaration

Exhibit-64 was recorded by securing the ft mental condition

of the deceased at the hands of P.W.4 Dr. Shekhar

Deshmukh.

18. So far as second dying declaration is concerned, it

appears that it was recorded soon after the frst dying

declaration Exhibit-64. P.W.8 has also stated that after

recording frst dying declaration of the deceased he gave

message to P.W.2 Ramdas Kondiba Kolgane, who was the

then Naib Tahsildar and was acting as an Executive

Magistrate at the relevant time for recording dying

declarations as per procedures. On perusal of evidence of

this P.W.2 it reveals that he in the intervening night of 24/25-

09-2012 received telephonic message from Police Outpost at

Police Station, Parbhani for recording dying declaration of the

deceased having burn injuries. Accordingly, he received

written letter at about 00.45 a.m. on 25/09/2012 and

18 JUDGMENT CRI. APPEAL NO. 614-14

thereafter, he approached concerned Medical Offcer P.W.4

Shekhar Deshmukh and then proceeded to Burn-Ward with

him. The evidence of this witness also shows that he had

secured medical opinion from P.W.4 Shekhar Deshmukh as to

whether the deceased was capable of making statement and

on examination by P.W.4 Dr. Shekhar Deshmukh, it was

found that Sheetal was capable of making statement. As

such, he proceeded to record the dying declaration of Sheetal,

which is at Exh.54 and appears to be in printed form. On

perusal of the same, it appears that deceased Sheetal while

making said statement had told P.W.2 Ramdas that appellant

no.1 poured kerosene on her person and her husband

appellant no.2 set her ablaze with the help of match stick. It

was also told by the deceased Sheetal that the appellants

were asking for money to be brought from her father and that

they were not honoured with "dhonde jewan". The deceased

specifcally stated the time of incident being took place at

9.00 p.m. on 24/09/2012. Further the time of starting of

recording the said dying declaration being at 00.55 a.m. and

time of fnishing the same being at 1.05 a.m. are also

mentioned on the said dying declaration Exhibit-54. This

19 JUDGMENT CRI. APPEAL NO. 614-14

witness i.w. P.W.2 has also deposed that after recording the

said dying declaration Exhibit-54, he obtained thumb

impression of Sheetal and also put his signature thereon and

then handed over the same in closed envelope to the Police

Out-Post in the said hospital. On perusal of cross-

examination of this witness, it is evident that the appellants

through their advocate tried to bring on record the fact that

at the time of alleged recording of the said dying declaration

Exhibit-54 Sheetal was not at all in a position to give the

statement and the same was in fact prepared at the instance

of relatives of the patient and P.W.8 Anand Kurundkar.

However, P.W.2 has denied such suggestion fatly. He also

stated that while recording the said dying declaration, P.W.8

had stayed out side and no one from the relatives of Sheetal,

were present along with him.

19. Further the evidence of P.W.4 Dr. Shekhar

Deshmukh, who had attended and verifed the physical and

mental condition of Sheetal while recording the aforesaid

dying declarations, indicates that he had examined Sheetal

prior and after recording of those two dying declarations and

20 JUDGMENT CRI. APPEAL NO. 614-14

found that she was in her senses though her condition was

poor and having pains. Further testimony of this witness

appears to be true version as he had taken due care of

examining Sheetal in respect of her mental ftness for making

such statements. Even in the cross-examination, nothing

suspicious has been brought on record by the defence side.

Though learned counsel for the appellants before the trial

court tried to suggest that due to cent percent bun injuries,

Sheetal was not in a position to make statements as she was

also given sedative, but this witness denied the same and

remained frm on his opinion that during the course of

recording both the dying declarations Sheetal was in senses

and capable of making statements. Though this witness

appears to have deposed before the learned trial court

without going through the medical papers, but his testimony

appears reliable even in absence of the same.

20. Thus, considering all the aforesaid aspects, we fnd

that both the dying declarations i.e. Exhibit-64 and 54

though recorded in different style, are consistent on material

21 JUDGMENT CRI. APPEAL NO. 614-14

parts and free from any clouding circumstances which may

render the same doubtful.

21. In the case of Purshottam Chopra and another vs.

State (Govt. of NCT Delhi), 2020 AIR (SC) 476 relied upon by

the learned APP for respondent-State the Supreme Court has

discussed the principles laid down by the Constitutional

Bench in the case of Laxman vs. State of Maharashtra, AIR

2002 Supreme Court 2973 and by considering the

observations in various earlier cases relating to dying

declarations and its admissibility and reliability, has observed

in para no.21 as follows :

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

ii) The Court should be satisfed that the declarant was in a ft 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 infrmity such as want of ft state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence.

iv) When the eye-witnesses affrm that the deceased was not in a ft and conscious state

22 JUDGMENT CRI. APPEAL NO. 614-14

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 satisfed that the maker is in a ft 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 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 ft and conscious state of the declarant to make the statement.

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

22. On going through the aforesaid principles, it has

been made clear by the Supreme Court that a dying

declaration could be the sole basis for conviction even

without any corroboration, provided that it inspires

23 JUDGMENT CRI. APPEAL NO. 614-14

confdence. Further it has also been observed that no certain

prescribed format or procedure for recording dying

declaration is required but only the thing which is to be

considered that the person recording a dying declaration

must be satisfed that the maker is in ft state of mind and is

capable of making the statement. Further it is also held that

even recording of such dying declaration at the hands of

Magistrate is not absolutely necessary. It is most important

to note here that the Supreme Court has also observed that

in burning cases the percentage and the degree of burns

could not shake credibility of dying declaration and the

decisive factor would be a quality of the evidence about the ft

and conscious state of the declarant to make the statement.

Thus, ignoring the technical faws, the Supreme Court has

guided that if the court fnds the statement placed as dying

declaration to be voluntary and also fnds it coherent and

consistent, there is no legal impediment in recording

conviction on its basis even without corroboration. In the

instant case also the evidence of P.W.8 Anand Kurundkar,

who recorded frst dying declaration, evidence of P.W.2

Ramdas Kolgane- Naib Tahsildar, who recorded second dying

24 JUDGMENT CRI. APPEAL NO. 614-14

declaration and evidence of P.W.4 Dr. Shekhar Deshmukh-

Medical Offcer, who certifed the fact that Sheetal was in ft

condition for making statement, defnitely inspire confdence

in the truthfulness of both the aforesaid dying declarations

Exhibit-64 and 54.

23. Though we fnd the aforesaid dying declarations

being trustworthy and reliable for recording the conviction

against the present appellants for the offence punishable

under Section 302 of IPC, but the other circumstantial

evidence on record also indicates the guilt of accused as the

articles found on the spot of incident as per the spot

panchanama defnitely incriminates appellants. Moreover,

the C.A. Report at Exhibit-103 also corroborates the version

of the deceased in her dying declarations as kerosene was

detected on the partially burnt clothe pieces of the deceased

and other articles like paper pieces, metallic locket with black

beads and hair. Even the partially burnt saree and blouse in

a cloth parcel also detected positive for the presence of

kerosene thereon. P.W.3 Dnyaneshwar Trimbak Zol, who is

the neighbour of the appellants and also the panch witness

25 JUDGMENT CRI. APPEAL NO. 614-14

over the spot panchanama, has also deposed about the

presence of the aforesaid articles on the spot of incident,

which had been sent to the chemical analysis. Further it is

also important to note here that in all three persons mainly

appellants and husband of appellant no.1 were present at the

time of incident on the spot of incident as stated by the

deceased in her dying declaration. However, out of those

three persons, the deceased only stated about role of these

appellants being the persons who set her ablaze. Had it been

a tutored case, then the deceased could have implicated all

three persons or other accused persons also, but she has

specifcally named only the appellants being the persons who

committed the crime. This is the most important

circumstance we found against the appellants.

24. Learned counsel for the appellants / accused has

also relied on various citations mentioned below for rendering

the aforesaid dying declarations being doubtful:

I) In Criminal Appeal No. 221 of 2014 (Janabai and

other vs. State of Maharashtra) it has been observed by this

court as under :

26 JUDGMENT CRI. APPEAL NO. 614-14

"Para No.7 : Specifc circumstances must be put to the accused under Section 313 of Cr.P.C. Para No.19 and 20 : Magistrate who claims to have recorded the dying declaration must record what questions he had put to the declarant earlier to the recording of dying declaration. If not so done, effect is fatal".

However, in view of the principles laid down in the

case of Purshottam (supra) there is no specifc format

required for dying declaration and the test about the

truthfulness of such dying declaration is only that it must

inspires confdence and satisfy the court being the true

version of deceased.

II) In Mannu Raja and another vs. The State of

Madhya Pradesh, (1976) 3 SCC 104, it has been observed as

under :

"Para No.9 : Recording of dying declaration by Investigating Offcer is deprecated. Para No.11 : If I.O. thought that injured was in precarious condition he should have requisition service of Magistrate".

In Balakram vs. State of U.P. (1975) 3 SCC 219, it

has been observed as under :

27 JUDGMENT CRI. APPEAL NO. 614-14

"Para No.53 : Recording of dying declaration by Investigating Offcer is deprecated because of Investigating Offcer is always overzealous to see success in the case. It is not prudent to keep reliance on the dying declaration recorded by Investigating Offcer".

Though it is observed in the aforesaid judgments

that dying declaration recorded by Investigating Offcer is not

a proper procedure but again in view of the principles laid

down in the case of Purshottam (supra) the dying declaration

recorded by Investigating Offcer cannot be discarded merely

because the Investigating Offcer is always overzealous to see

success in the case. There is no rule of law that in every case

dying declaration recorded by police personnel, needs to be

discarded with prejudiced mind. Moreover, in the instant

case though the frst dying declaration is recorded by police

personnel but the Naib Tahsildar / Executive Magistrate has

also recorded the subsequent dying declaration and both

these dying declarations appear to be consistent on material

aspect. As such the aforesaid judgments are not helpful to

the appellants.

                                  28           JUDGMENT CRI. APPEAL NO. 614-14

               III)     In K. Ramchandra Reddy and another vs. The

Public Prosecutor, (1976) 3 SCC 618, it has been observed as

under :

"Para No.6 : Dying declaration is at par like other piece of evidence.

Para No.7 : When there were several persons gathered and attended the deceased at the spot yet did not name the accused is a serious infrmity. Para No.11 : Patient did not disclose about incident to the doctor at hospital is also a serious infrmity. Para No.12 : Magistrate must put direct questions to the injured regarding his / her mental state. Omission to do this is a serious faw. Accused deserves to be given beneft".

However, in the instant case there were no several

persons gathered while recording the dying declarations. On

the contrary, it appears that P.W.8 Anand Kurundkar had

recorded the frst dying declaration of the deceased Sheetal at

the earliest opportunity and that too after securing the ft

condition of the deceased to make such statement. He has

also categorically deposed that when he along with P.W. 4 Dr.

Shekhar Deshmukh went to record the statement of the

deceased, he asked all the relatives to stay out while

29 JUDGMENT CRI. APPEAL NO. 614-14

recording the same. Further as mentioned above, no specifc

format is required for recording dying declaration as per the

principles laid down by the Supreme Court. Thus, the

observations in the aforesaid case is not at all applicable to

the present case.

IV) In the case of P. Mani vs. State of T. N. (2006)

3 SCC 161, it has been observed by Supreme Court as

under :

"Para No.3 : The accused himself taking injured to the hospital.

Para No.11 : This conduct of the accused is not unfair more particularly when the accused took part in dowsing fames.

Para No. 12 : If accused had intended to kill the deceased then he would not have taken the injured to hospital.

Para No.13 : If the oral evidence of the witness is contrary to that appearing in the dying declaration, then such oral evidence shall prevail of the witness. Para No. 14 : When suspicion arises about correctness of dying declaration on the basis of other material / evidence then the dying declaration cannot be made sole basis for conviction".

30 JUDGMENT CRI. APPEAL NO. 614-14

Learned counsel for the appellants / accused

mainly relied on aforesaid observations since P.W.3

Dnyaneshwar did not utter any word that the deceased had

made any statement involving the accused. On the contrary,

this P.W.3 Dnyaneshwar stated that appellant no.2 i.e.

husband of deceased Sheetal and original accused no.9 had

in fact tried to dowse the fames of Sheetal at the time of

incident. Admittedly, P.W.3 Dnyaneshwar who appears to be

neighbour of the appellants, has stated so. However, the

dying declaration at Exhibit No. 64 itself has given reasons

as to why appellant no.2 went there for dowsing the fames.

It is specifcally stated by the deceased in the dying

declaration Exhibit-64 that appellant no.2 only went to dowse

her fre in apprehension that his house might catch fre. She

has specifcally stated that after setting her ablaze, appellant

no.2 had in fact went in outer room and sat there but due to

aforesaid apprehension he later on came to dowse her fames.

It is to be noted here that P.W. 3 Dnyaneshwar had never an

occasion to see the aforesaid conduct of appellant no.2 as he

only came to the spot later on and after hearing shouts of the

deceased. Further, when both the dying declarations are

31 JUDGMENT CRI. APPEAL NO. 614-14

found consistent throughout, then the act of appellants of

taking the deceased to the hospital in injured condition

cannot be considered as a favourable circumstance to them.

For this reason, we are not in accordance with the aforesaid

observations in the above cited case for giving any beneft to

the appellants or to discard the dying declarations on record.

V) In case of State of Maharashtra vs. Sanjay

Digambarrao Rajhans, (2004) 13 SCC 314, it has been

observed as under :

"Para No.5 : When motive is not established. Para No.8: Accused did not fea but took injured to the hospital and himself remained in the hospital. Para No.10: Dying declaration must be free from even a slightest doubt. Learned counsel for the appellants contended that in that dying declaration, in the case law, there was no stamp ink. Similarly, in the inquest or P. M. Report in the present case also there is no stamp ink on thumb found. This would create a serious doubt.

Para No. 16 : If the story of the prosecution about homicide and story of accused about suicide both unacceptable then beneft must be given to the accused.

Para No.18 : Person whom oral dying declaration is made if not reports the matter to police, his conduct

32 JUDGMENT CRI. APPEAL NO. 614-14

is not natural, therefore, he cannot be believed. In the present appeal in hand P.W. 5 and 6 though reached the patient about 11.30 p.m. (i.e. much prior to attending of patient by P.W. 8 Kurundkar, P.H.C.) did not report the matter allegedly heard from the injured, to the police would make both the said witness unreliable".

In view of the principles laid down in the case of

Purshottam (supra) by Supreme Court the aforesaid

observations cannot be made applicable to the present case

as we have already come to the conclusion that both the

dying declarations made by the deceased appear truthful.

Further merely because the accused did fee from the spot

but took the injured to the hospital, cannot be considered

favourably to them.

VI) In case of Sanjay Sakharam Ahire vs. The

State of Maharashtra, 2013 SCC OnLine Bom 1390, it has

been observed as under :

"Para No.5 : Parents / relatives were found to be in continuous company of the patient till the death would make a base to presume that there is likelihood of tutoring".

33 JUDGMENT CRI. APPEAL NO. 614-14

Learned counsel for the appellants has expressed

the view that when the deceased Sheetal was in company of

her relatives till her death, a presumption can not be

overruled that both the dying declarations made by her are

the result of tutoring. However, we have already mentioned

earlier that P.W.8 Anand Kurundkar, Police Head Constable

had specifcally asked all the relatives to stay out while

recording the dying declaration and therefore, the above

observations are not helpful to the appellants.

VII) In case of Suresh Arjun Dodirjar (Sonar) vs.

State of Maharashtra, 2005 ALL MR (Cri) 1599, it has been

observed as under :

"Para No.7, 8 and 9 : When there are two dying declarations which slightly differ about the incident and there is interse variance between such two dying declarations about the prelude to the incident and the incident, then the absence of prelude in the 2nd dying declaration attain great importance and the common thread which is about the actual incident appearing in both the dying declarations cannot be of any use because the dying declaration has to pass all tests of reliability not only about the incident but also prelude to the incident.

34 JUDGMENT CRI. APPEAL NO. 614-14

Para No. 11 : Oral dying declaration- if the witness does not narrate the incident immediately to the police or anybody else such conduct, his non reporting about the incident to police makes him unreliable".

We are not inclined to rely on aforesaid observation

mainly because we have already found both the dying

declarations in this context reliable, trustworthy and truthful.

VIII) In the case of Bhagirath Bhaurao Kanade vs.

State of Maharashtra, (1996) SCC OnLine Bom 316, it has

been observed as under :

"Para No. 20 : When there is a case about history given to and recorded in medical case papers and also about recording of dying declaration by the Magistrate then both documents are important and if there is variance then the dying declaration is to be discarded. In the present appeal the prosecution deliberately withheld the medical case papers. This creates a serious doubt. Therefore, adverse inference needs to be drawn against the prosecution and accused needs to be acquitted".

Learned counsel for the appellants has strongly

relied on aforesaid observations mainly because P.W.4 Dr.

35 JUDGMENT CRI. APPEAL NO. 614-14

Shekhar Deshmukh has admitted in his cross-examination

that he did not bring medical papers at the time of deposing

on dying declaration recorded in his presence, even though it

was specifcally asked in the witness summons to him.

However, the Supreme Court in the case of Purshottam

(supra) has already observed that a dying declaration could

be the sole basis of conviction even without corroboration, if

it inspires confdence of the court. Here in this case P.W.4

Dr. Shekhar Deshmukh has categorically deposed that he

had found deceased Sheetal in her senses and capable of

making statement prior and after recording of both the dying

declarations. Moreover, this witness has also stated as to

which medicines were given to Sheetal after she was brought

in the hospital. Moreover, nothing has been brought on

record in the cross-examination of this witness as well as in

the cross-examination of persons who recorded the dying

declarations which can produce a severe dent in the

prosecution story. Under such circumstances, we do not fnd

any reason to doubt the testimonies of the aforesaid

witnesses merely because P.W.4 Dr. Shekhar Deshmukh did

36 JUDGMENT CRI. APPEAL NO. 614-14

not bring the medical papers regarding treatment of deceased

at the time of his deposition.

IX) In the case of Sau. Kamlabai Haribhau

Lastane vs. State of Maharashtra Through P.S.O. Nandgaon

Khandeshwar, (2019) 2 AIR Bom R (Cri) 501, it has been

observed as under :

"Para No. 25-27 : Dying declaration on printed format not safe to be accepted.

Para No. 28 : Magistrate himself put questions to the injured in order to ascertain mental state of patient and he must record such questions. Para No. 29 : It is unsafe to pick and choose one dying declaration at the exclusion of other. Improbable mars the correctness and truthfulness of the dying declaration.

Para No. 34 : Prosecution if does not produce treatment papers the court cannot form opinion on the basis of certifed given by doctor on the dying declaration or about the dying declaration such effect is fatal".

In the case of Madhukar Shrimant Mhaske and

another vs. The State of Maharashtra, 1998 SCC OnLine

BOM 186, it has been observed as under :

37 JUDGMENT CRI. APPEAL NO. 614-14

"Para No. 36 : Minor inconsistencies in the dying declaration has to be considered. Thumb impression / T.I. must be endorsed. If there is no endorsement below the T.I. about whose it is then the dying declaration has to be rejected".

We do not fnd the aforesaid observations

applicable to the present case mainly because no specifc

format is required for recording the dying declaration.

However, even it is not necessary that dying declaration must

be recorded by a Magistrate in every case. Only it is to be

seen that it inspires confdence.

               X)       In       the    case    of    Laxman          vs.     State        of

Maharashtra, (2002) 6                   SCC 710 it has been observed as

under :

"Para No. 2 : If there is material on record indicating that the deceased was fully conscious and was capable of making statement then there is no need of endorsement by doctor.

Para Nos. 4 and 5 : Magistrate / person recording statement of the deceased should depose indicating the questions which he had put to the patient and the answers to such questions and only then a satisfaction by the court could be arrived and only then need for medical certifcate is exempted.

38 JUDGMENT CRI. APPEAL NO. 614-14

Para No. 3 : Although it is the law that the dying declaration is admissible yet court has to exercise great caution in giving weight to such dying declaration. Dying declaration is a species of evidence and dying declaration stand affected by existence of many other circumstances effecting its truth and correctness".

In the aforesaid observations, general principles

are laid down by the Supreme Court as to how and in what

circumstances dying declaration should be believed. It is

important to note that the aforesaid observations are

generally relate about caution to be taken before believing the

dying declaration. In the present case, we have already found

the dying declarations being reliable and trustworthy and

therefore, the aforesaid observations are in fact helpful to the

prosecution case as the guidelines mentioned in the aforesaid

observations are fulflled in the present case.

XI) In the case of Manohar Dadarao Landge vs.

State of Maharashtra, 2000(2) Mh.L.J. 3, it has been

observed as under :

"Para No. 32, 40 and 51 : Declarant must admit that the statement was read over to him / her and was

39 JUDGMENT CRI. APPEAL NO. 614-14

heard by him / her and must admit that it is correct. If this is not complied with then the dying declaration cannot be relied upon. Para No. 42 : Prosecution must produce relevant medical test papers".

In the case of State of Punjab vs. Gain Kaur and

another, 1998 SCC(Cri) 942, it has been observed as under :

"Para No.5 : In case of 100% burns there cannot be ridges. It would make the dying declaration doubtful".

In case of Abdul Riyaz Abdul Bashir vs. State of

Maharashtra, 2012(2) Mh.L.J. (Cri.)437, it has been observed

as under :

"Para No. 8 : Merely because it is printed proforma that statement is read over to the deponent it cannot be presumed that actual exercise of reading over the statement and getting it endorsed was actually followed.

Para No. 12 to 14 : Dying declaration if recorded after arrival of the parents and relatives of the deceased plausibility of deceased being tutored cannot be ruled out".

                                    40                   JUDGMENT CRI. APPEAL NO. 614-14

               We      have       consistently       stated      that       no     certain

formalities        are      to     be     followed      while     recording           dying

declarations in the light of guidelines mentioned in the case

of Purshottam (supra). Moreover, it is specifcally mentioned

that percentage and degree of burns in burning cases, is not

material at all for deciding credibility of dying declaration.

Under such circumstances, the observations in aforesaid

cases are not at all helpful to the appellants.

25. Same is the case in respect of following

observations in the cases mentioned below.

In case of Ganpat Bakaramji Lad vs. State of

Maharashtra, 2018(2) Mh.L.J. 786, it has been observed as

under :

"Para No. 20, 22, 23 and 34 : The necessity of reading over and explaining the deceased of the dying declaration only could exempted in very exceptional and extra ordinary circumstances otherwise cannot be.

Para No. 29 : It is for the court to arrive at a conclusion based on the satisfactory material that the declarant was conscious and ft. Court further has to decide that the dying declaration was not the

41 JUDGMENT CRI. APPEAL NO. 614-14

product of tutoring, prompting, imagination or vindictive. If there is slightest doubt or suspicion, dying declaration not to be acted upon. It is not a general rule that in every case there is an exemption from reading over of the statement to the declarant".

In the case of Shaikh Bakshu and others vs. State

of Maharashtra, (2007) 11 SCC 269, it has been observed as

under :

"Para No. 13 : The fact that the dying declaration was read over and explained to the declarant must be clearly mentioned in the dying declaration. In the absence of such mentioned in the dying declaration the fact cannot be presumed".

In the case of Surinder Kumar vs. State of

Haryana, (2011) 10 SCC 173, it has been observed as under :

"Para No. 14 to 31 : Deceased was given injunction

(sedative painkillers), it should be presumed

therefore, that the deceased was not supposed to

be having normal alertness. Such dying

declaration does not inspire confdence".

42 JUDGMENT CRI. APPEAL NO. 614-14

26. Thus, we fnd that the citations relied upon by the

learned counsel for the appellants are not helpful mainly

because the two dying declarations in the present case do

inspire confdence and the same are consistent,coherent and

voluntarily made throughout. Thus, the same are suffcient

to record conviction of appellants even without any

corroboration.

27. In the case of Laxman vs. State of Maharashtra,

AIR 2002 Supreme Court 2973 in para 3 has made following

observations :

"The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth.

43 JUDGMENT CRI. APPEAL NO. 614-14

The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confdence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a ft state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a ft mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a ft and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certifcation of the doctor as to the ftness of the mind of the declarant, the dying

44 JUDGMENT CRI. APPEAL NO. 614-14

declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffce provided the indication is positive and defnite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police offcer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specifed statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfed that the deceased was in a ft state of mind. Where it is proved by the testimony of the magistrate

45 JUDGMENT CRI. APPEAL NO. 614-14

that the declarant was ft to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certifcation by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise".

28. In case of Purshottam (supra) the Supreme Court

in paragraph nos. 18, 18.1 and 18.2 has made following

observations :

"18. The principles relating to admission and acceptability of the statement made by a victim representing the cause of death, usually referred to as a dying declaration, are well settled and a few doubts as regards pre- requisites for acceptability of a dying declaration were also put at rest by the Constitution Bench of this Court in the case of Laxman v. State of Maharashtra : (2002) 6 SCC 710.

18.1. In the said case of Laxman, conviction of the appellant was based on dying declaration of the deceased which was recorded by the

46 JUDGMENT CRI. APPEAL NO. 614-14

Judicial Magistrate. The Session Judge and the High Court found such dying declaration to be truthful, voluntary and trustworthy; and recorded conviction on that basis. In appeal to this Court, it was urged with reference to the decision in Paparambaka Rosamma and Ors. v. State of Andhra Pradesh : 1999 CriLJ 4321 that the dying declaration could not have been accepted by the Court to form the sole basis of conviction since certifcation of the doctor was not to the effect that the patient was in a ft state of mind to make the statement. On the other hand, it was contended on behalf of the State, with reference to the decision in Koli Chunilal Savji and Anr. v. State of Gujrat: 1999 CriLJ 4582, that the material on record indicated that the deceased was fully conscious and was capable of making a statement; and his dying declaration cannot be ignored merely because the doctor had not made the endorsement about his ft state of mind to make the statement. In view of these somewhat discordant notes, the matter came to be referred to the Larger Bench. The Constitution Bench summed up the principles applicable as regards the

47 JUDGMENT CRI. APPEAL NO. 614-14

acceptability of dying declaration in the following:-

"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross- examination, the courts insist that the dying declaration should be of such a nature as to inspire full confdence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of

48 JUDGMENT CRI. APPEAL NO. 614-14

the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a ft state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a ft mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a ft and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certifcation of the doctor as to the ftness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffce provided the indication is positive and defnite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police offcer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to

49 JUDGMENT CRI. APPEAL NO. 614-14

assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specifed statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfed that the deceased was in a ft state of mind. Where it is proved by the testimony of the Magistrate that the declarant was ft to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certifcation by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."

18.2. The Constitution Bench affrmed the view in Koli Chunilal Savji (supra) while

50 JUDGMENT CRI. APPEAL NO. 614-14

holding that Paparambaka Rosamma (supra), was not correctly decided. The Court said,-

"5.......It is indeed a hyper technical view that the certifcation of the doctor was to the effect that the patient is conscious and there was no certifcation that the patient was in a ft state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfed that the patient was in a ft state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma v. State of A.P.(1999) 7 SCC 695 must be held to be not correctly decided and we affrm the law laid down by this Court in Koli Chunilal Savji v. State of Gujarat (1999) 9 SCC 562."

29. Thus, in the light of aforesaid observations, we fnd

that both the dying declarations in the present case which

are at Exhibits- 64 and 54 have satisfed the guidelines and

principles laid down in the aforesaid two cases and the same

appear to be consistent, coherent and voluntary in respect of

51 JUDGMENT CRI. APPEAL NO. 614-14

the guilt of the appellants. Therefore, as per our discussion

made herein above and considering the entire evidence on

record, we are of the view that the prosecution has

established the fact that on the fateful day, appellant no.1

poured kerosene on the person of deceased Sheetal and

appellant no.2 set her ablaze with the help of match-stick,