Bharat S/O Waman Muley And Others vs The State Of Maharashtra
2022 Latest Caselaw 12300 Bom

                                           (1)

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            BENCH AT AURANGABAD

            CRIMINAL APPEAL NO. 499 OF 2016

1.    Bharat S/o Waman Muley,
      Age : 36 years, Occu. Agril.,
      R/o Umari, Tq. Kaij, Dist. Beed,

2.    Dhanraj S/o Waman Muley,
      Age : 38 years, Occu. Agril.,
      R/o Umari, Tq. Kaij, Dist. Beed,

3.    Manisha D/o Sampati Muley,
      Age : 31 years, Occu. Household,
      R/o Umari, Tq. Kaij, Dist. Beed.                ...APPELLANTS
                                                      (Accused)

               VERSUS

The State of Maharashtra                           ... RESPONDENT

Mr. S. J. Salunke, Advocate for the appellant Nos. 1 and 2
Mr. S. P. Deshmukh, APP for the respondent/State

                                    WITH

            CRIMINAL APPEAL NO. 807 OF 2022

Manisha D/o Sampati Muley,
Age : 22 years, Occu. Nil,
R/o Umari, Tq. Kaij, Dist. Beed,
Presently at : Yerwada Prison, Pune.                   ... APPELLANT
                                                 (Ori. Accused No.3)

               VERSUS

The State of Maharashtra
Through Police Station Officer,
Kaij Police Station,




     ::: Uploaded on - 29/11/2022                    ::: Downloaded on - 30/11/2022 21:58:22 :::
                                             (2)

Tal. Kaij, Dist. Beed.                            ...     RESPONDENT

Mr. V. P. Sawant, Advocate for the appellant
Mr. S. P. Deshmukh, APP for the respondent/State

                       CORAM : R. G. AVACHAT &
                               R. M. JOSHI, JJ.

RESERVED ON : 16th NOVEMBER, 2022 PRONOUNCED ON: 29th NOVEMBER, 2022

JUDGMENT (PER- R. M. JOSHI, J.):-

1. "Nemo moriturus praesumitur mentire" means

a man will not meet his maker with a lie in his mouth, is a

legal principle, based upon theory that a sense of

impending death produces in a man's mind the same

feeling as that of a conscientious and virtuous man under

oath. Such statements are admitted, upon consideration

that their declaration made in extremity, when the maker

is at the point of death and when every hope of this world

is gone, when every motive to falsehood is silenced and

the mind is induced by the most powerful consideration to

speak truth.

2. The above legal principle has perfect

application to the present case as it can be seen from the

material evidence on record the case of the prosecution

unfolds which is narrated in short as under:

(a) On 19/04/2015 at about 3.00 am accused No.3

Manisha called Varsha(deceased) out of her house and

after she came out of the house accused No. 1 Bharat

Dhanraj ignited match stick and set her ablaze. According

to deceased the said incident has occurred owing to the

previous dispute/quarrels between them. After she was

set ablaze her son Nikhil came out of the house on

hearing her cries and he saw accused persons running

away from the spot. Varsha was taken to S.R.T.R. M. C. &

Hospital, Ambajogai, Dist. Beed and was admitted there

at about 5.35 am. The Medical Officer on duty informed

about the same to the police chowky situated at the

hospital and accordingly between 6.45 to 7.15 am first

statement of deceased came to be recorded by the Police

Head Constable. On that day itself at about 11.25 am

another statement of Varsha was pen down by the

Executive Magistrate. In both statements she narrated

the incident of her being set ablaze and the said act being

done by accused herein. On the basis of first statement of

Varsha offence came to be registered against the accused

vide Crime No. 88 of 2015. On 30 th April, 2015 at around

10.30 pm Varsha died while being treated in Hospital.

(b) During the investigation spot panchnama was

drawn and a plastic Can, match sticks and burn pieces of

saree were recovered. The spot of the incident was found

in front of the house of deceased. According to the

prosecution accused No.1 Bharat made disclosure

statement and pursuant there to his clothes were

recovered and seized. Seized muddemal was sent to the

F.S.L. for chemical examination and its report is filed on

record. Investigating Officer recorded statements of

witnesses and on conclusion of investigation charge-sheet

came to be filed. On committal of case, Trial Court framed

charge against accused vide Exhibit 6. Since, accused

abjured the charge they were put on trial, which

culminated into their conviction.

3. Appellants/accused took exception to the

judgment dated 22nd July, 2016 passed by the Additional

Sessions Judge, Ambajogai, Dist. Beed in Sessions Case

No. 58 of 2015 by filing these appeals under Section 374

of the Code of Criminal Procedure (Appellants are referred

to as accused hereinafter).

4. There is no eye witness to the incident in which

deceased sustained burns and the prosecution has sought

to prove guilt of the accused by mainly placing reliance on

proof of the written dying declarations of deceased at

Exhibit 30 and 40 through Balkrushna (PW-5), Narayan

(PW-8) and two Medical Officers Dr. Tushar (PW-6) and

Dr. Vaibhav (PW-7). Apart from this oral dying

declarations made to Nikhil (PW-1) and Baban (PW-4) are

taken support of. In all 10 witnesses were examined.

Govind (PW-2) was examined to prove the map of the

spot which was found to be in front of the house of the

deceased. Spot panchanama (Exhibit 23) was sought to

be proved through Baban ( PW-4) who claimed seizure of

incriminating articles from the spot. Medical Officer Dr.

Vishwajit (PW-9) who conducted autopsy on the dead

body gave cause of death of deceased as septicemia due

to 88% of superficial and deep total body surface area.

Recovery of the clothes of the accused No.1 are sought to

be believed through testimony of Investigating Officer

Pravin Chavan (PW-10).

submitted that dying declarations upon which reliance is

placed by prosecution are not trustworthy and are

inconsistent to each other. In this regard reference is

made to statement of deceased Exhibit 30 and 40

wherein according to him the prior incident mentioned

therein is different and this makes these two dying

declarations unbelievable. Attention of this Court is also

drawn to the evidence of Nikhil (PW-1), Baban (PW-2)

and Dr. Tushar (PW-6) who have given different account

of the incident in question which according to him run

contrary to the written dying declarations recorded during

the investigation. Other submissions made challenging

the dying declarations on various counts are dealt with at

appropriate stage herein after. His endevour was to

convince this Court that no conviction can be based upon

dying declarations (Exhibit 30 and 40) and oral dying

declaration, which is not only weak piece of evidence but

also inconsistent with those written statements.

6. In support of his submissions reliance is placed

on following case laws.

(i) Uka Ram Vs. State of Rajasthan, 2001 All MR(Cri) 1215 (Supreme Court),

(ii) Paparambaka Rosamma & Ors., Vs. State of Andhra Pradesh, 2000 All MR (Cri) 116 (Supreme Court),

(iii) Mohammed Kunju & another Vs. State of Karnataka, 2000 All MR (Cri) 122 (Supreme Court),

(iv) Shakuntalabai wd/o. Khairuprasad Joshi & Anr. Vs. The State of Maharashtra, 2012 All MR (Cri) 1970,

(v) U.S.A. Cable Networks & Ors. Vs. State of Maharashtra & Ors., 2012 All MR (Cri) 1976,

(vi) Shantilal Haribhau Karkele & Anr. Vs. The State of Maharashtra, 2018 All MR (Cri) 1241,

(vii) Sk. Gulab @ Gulam s/o. Sk. Ahemad Vs. The State of Maharashtra, 2018 All MR (Cri) 1250,

(viii) Subhash s/o. Ratan Chavan & Anr. Vs. The State of Maharashtra, 2016 All MR (Cri) 735,

(ix) Laxman Chandar Jadhav Vs. The State of Maharashtra, 2016 All MR (Cri) 742,

(x) Munnabee w/o. Shoukat Tadvi Vs. The State of Maharashtra, 2016 All MR (Cri) 3822,

(xi) Tulshiram Bhanudas Kambale & Ors. Vs. The State of Maharashtra, 1999 All MR (Cri) 1593,

(xii) Milind Ramchandra Gharat Vs. The State of Maharashtra & Anr., 2015 All MR (Cri) 2377,

(xiii) Lalchand Cheddilal Yadav Vs. State of Maharashtra, 2000 all MR (Cri) 1485,

(xiv) Hridaya Ranjan Pd. Verma & Ors. Vs. State of Bihar & Anr., 2000 All MR (Cri) 1490,

7. Learned counsel for accused No. 3 apart from

adopting above submissions argued that prosecution has

failed to lead any evidence showing, common intention

being shared by this accused with co-accused. According

to him for want of evidence it cannot be held that there

was premeditation and meeting of mind of all the accused

in order to share common intention, which ultimately

makes them responsible for acts of each other. On these

amongst other submissions he raised challenge to

impugned judgment. He placed reliance on following

judgments to support his contention.

(i) Jasdeep Singh Alias Jassu Vs. State of Punjab, (2022) 2 Supreme Court Cases 545,

(ii) Hardeep Singh & Ors. Vs. State of Haryana, 2008 DGLS (SC) 844,

(iii) Prashant Narayanrao Chidam & Ors. Vs. State of Maharashtra 7 Ors., 2008(1) Bom.C.R.(Cri.) 788,

(iv) Inderjit Singh and another Appellants Vs. State of Punjab Respondent, AIR 1991 Supreme Court 1674,

(v) Tarseem Kumar Appellant Vs. The Delhi Administration Respondent, AIR 1994 Supreme Court 2585.

8. On the other hand learned APP supported the

judgment impugned by stating that there are no material

inconsistencies in the written as well as oral dying

declaration made by deceased. According to him

statements are duly supported by testimony of Medical

Officer, about the fit mental condition of maker. He also

urged that role of accused No. 3 is major as at 3.00 am

deceased would not have come out of the house except

( 10 )

she was called by lady and the totality of circumstances

on record indicates the common intention of all accused

in commission of the crime in question. On these

submissions, he prayed for dismissal of appeals.

9. In the instant case since the prosecution is

seeking to place reliance on statements of deceased

which can now be treated as dying declarations in order

to prove the guilt of accused, as the incident in question

has not been witnessed by any one else. It is therefore

necessary to consider the legal position in respect of

acceptability of dying declaration. There are catena of

judgments on the subject wherein the Hon'ble Apex Court

has laid down the principles relating to recording of dying

declaration and its admissibility and reliability. These

principles have been summed up by the Hon'ble Apex

Court in the case of Purshottam Chopra and Ors. Vs.

State (Govt. of NCT Delhi) in Criminal Appeal No.

194-195 of 2012 decided on 07/01/2020 as under:

"For what has been noticed hereinabove, some of the principles relating to recording of dying

( 11 )

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 declarant 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 declaration.

( 12 )

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 on its basis even without corroboration."

10. By keeping in mind above the principles laid

down by the Hon'ble Apex Court, evidence in the present

case is scrutinized with utmost care and caution. The

judgments cited on record on behalf of Accused are

minutely considered.

11. As per the testimony of Nikhil (PW-1) on the

date of incident at about 3.00 to 3.30 am he heard voice

of his mother and therefore he came out of the house and

saw that his mother on flames and accused persons were

running away from the place. He claimed that while his

mother was taken to the hospital in rickshaw she told him

( 13 )

that Manisha accused No.3 called her out of the house

and Bharat accused No.1 and Dhanraj accused No.2 were

standing out side of the house. She further told him that

Bharat poured kerosene on her and Dhanraj lighted

match stick and set her on fire.

12. Dr. Tushar (PW-6) attached to S.R.T.R.

hospital, Ambajogai as a C.M.O testified about deceased

being admitted to the hospital after registration of medico

legal case at 5.35 am. He also claims to have intimated

about the same to the constable at police chowky S.R.T.R.

hospital and asked him to follow the requisite procedure.

Thereafter as per the request of the police he ascertained

condition of the patient and found that patient was in a

position to give the statement. He, therefore, allowed the

police personnel to record the statement of the patient

and accordingly her statement was recorded. During

recording of the statement he observed patient's

condition though he was attending other patients too at

that time. Before commencement of recording of

( 14 )

statement as well as after statement was completed, by

examining the patient he made endorsement (Exhibit 33)

about the condition of the patient to be fit to give

statement on the statement recorded by the police

personnel.

13. Narayan Jadhav (PW-8) Police Head Constable

attached to S.R.T.R. hospital Police chowky claimed that

at around 6.15 am he had received call from C.M.O. and

he was asked to record statement of Varsha Muley who

was admitted in the hospital pursuant to sustainment of

burn injuries. He visited ward No. 35 of the hospital and

met C.M.O. He also verified identity of Varsha and

thereafter called upon C.M.O. to ascertain physical

condition of Varsha to give statement. C.M.O. examined

the patient and informed the witness that she was in the

condition to give statement and accordingly made

endorsement to that effect on the paper on which her

statement was to be recorded. He further deposed about

Varsha informing him about the quarrel that occurred

( 15 )

earlier day on account of fetching of water and narrated

incident occurred on 19th April, 2015 at about 3.00 am.

She further stated to the witness that at that time all

three accused came to her house and Manisha accused

No.3 called her out of the house and when she came out,

Bharat accused No. 1 poured kerosene on her person and

Dhanraj accused No.2 set her on fire with match stick.

She further stated about raising cries and on hearing the

same her son came out of the house and she was taken

to the hospital thereafter.

14. During the cross-examination this witness

admitted that there is no mention of the word "mental

and physical condition" on the endorsement (Exhibit 33)

made by Medical Officer. He further stated that when he

visited the ward there were many relatives of the

deceased near her. But there is no evidence to indicate

that any one else was present at the time of actual

recording of statement. He also accepted that there are

corrections made in the statement. In this regard Dr.

( 16 )

Tushar (PW-6) was also cross-examined in order to bring

it on record that the deceased was not in fit mental and

physical condition to make statement. He admitted that

the statement of the deceased does not bear

endorsement mentioning fit condition of the patient to

make statement. Though it is admitted by him that the

patient sustaining 99% burn inhales high flames and

large smoke but denied in each and every case trachea

and respiratory system of the patient is affected. He also

admitted that the burn injuries there is loss of fluid which

is known as hypovolumic shock. He, however, denied

present case to be of hypovolumic shock. According to

this witness except for the said patient there was no any

other patient who was required extra care. In spite of

certain admissions given by these witnesses, the core

evidence of the recording of the statement while

deceased was in fit mental and physical condition is not

affected. There is no suggestion made to the Police Head

Constable that any relative of deceased was present near

her bed to infer any tutoring. Secondly, though

( 17 )

corrections are noticed in Exhibit 30 but even in ordinary

course, while recording statement situation may arise

requiring corrections. What is relevant to note is that

there is no correction made herein to suit convenience of

prosecution. Pertinently, Medical Officer was present

through out recording of statement and he had

ascertained condition of deceased during entire period. In

such facts, no doubt could be created by defence in

correct recording of statement of deceased. Hence,

accused cannot derive any benefit from judgment in case

of Shakuntalabai wd/o. Khairuprasad Joshi & Anr.

Vs. The State of Maharashtra (cited supra), as in that

case dying declaration was discarded for want of

certification by doctor or at least his signature on

statement.

15. With regard to dying declaration (Exhibit 30)

which came to be recorded on 19 th April, 2015 at about

11.20 am, Balkrushna Wanjarkhedkar PW-5, Naib

Tahsildar, Ambajogai deposed about visiting S.R.T.R.

( 18 )

hospital at 11.00 am and making inquiry with Dr. Vaibhav

in-charge of ward No. 14 and requested him to examine

Varsha as he wanted to record her statement. Medical

officer examined Varsha and made endorsement about

her consciousness and that she is in a position to give a

statement. He thereafter himself ascertained and found

that Varsha was in a position to give statement.

According to him Varsha made a statement to the effect

that on 19th April, 2015 at 3.00 am Manisha (accused No.

3) called her out of house and found Bharat and Dhanraj,

co-accused, standing in front of the door of the house.

She further stated that Bharat poured kerosene on her

person and Dhanraj set her on fire with match stick.

16. Questions were put to this witness in the

cross-examination that there is no entry of noting

questions put by her to ascertain the consciousness of

Varsha nor entry about the talk with Dr. Vaibhav in this

regard which were not sufficient to challenge bonafides of

the witness. He further admitted that date "19/4/2015" is

( 19 )

not reflected from Exhibit 30 i.e. statement of Varsha. He

accepted to have not seen entire body of the deceased

but denied the suggestions regarding impression of toe

on the said statement to be not of deceased. He however

candidly deposed about the statement being read over

after recording to deceased and obtainment of impression

of toe of the right leg on the statement.

17. To lend support to testimony of Naib Tahsildar,

Dr. Vaibhav (PW-7) deposed that he was on duty in ward

No. 14 as House Officer at about 11.00 am. He also

deposed about Executive Magistrate meeting him and

making enquiry about Varsha. According to him he

examined patient and told to the Executive Magistrate

that the patient is in condition to give a statement and

endorsement to that effect was made on the paper. He

further candidly deposed about a statement being

recorded in his presence and Magistrate reading over the

said statement to Varsha before obtaining impression of

toe of the right leg thereon.

( 20 )

18. After recording of the statement also he

examined patient and found her to be conscious and

oriented. He identified the endorsement made on

statement Exhibit 30. In the cross-examination of Medical

Officer defence could not elicit any answer in order to

disbelieve his testimony about examining patient before

and after recording of the statement and found her to be

conscious and oriented.

19. Aforesaid evidence indicates that Special

Executive Magistrate not only obtained opinion of Doctor

about conscious oriented condition of patient but he

himself ascertained her fitness to make statement.

Endorsements made by Medical Officer before

commencement and after conclusion of recording of

statement, shows compliance of requirement of condition

precedent for a valid statement.

20. It is sought to be argued on behalf of accused

that in view of inconsistencies in the statements accused

( 21 )

was acquitted by this Court in case of Shakuntalabai

wd/o. Khairuprasad Joshi & Anr. and Shantilal

Haribhau Karkele & Anr. (cited supra). It is relevant to

note that in the case of Shakuntalabai wd/o.

Khairuprasad Joshi & Anr., the Medical Officer did not

certify the fitness of the person making statement or

even append his signature without any explanation

thereon and in that circumstance the said evidence was

found to be unsafe and unreliable to record conviction.

21. In case of Shantilal Haribhau Karkele &

Anr (cited supra) it was found that in that case deceased

was receiving treatment for four days and hence it was

necessary for the prosecution to produce bed head ticket

case papers. The said requirement was found necessary

in order to ascertain, administration of sedatives if any

during treatment as 9 hours had lapsed since the time of

admission of the deceased in the hospital till recording of

statement. In the present case deceased met with the

incident at 3.00 am. MLC came to be recorded at 5.35

( 22 )

am. Intimation was given to the police at 6.15 am and at

around 7.00 am statement of the deceased came to be

recorded by Narayan (PW-8) Police Head Constable.

Similarly Dr. Tushar (PW-6) has clearly stated that there

was no other patient requiring such special treatment at

the relevant time. So also, Narayan before recording the

statement of deceased has ascertained and has verified

her identity. Considering these set of facts in present case

appellants cannot derive any benefit from the judgments

referred to above.

22. Learned counsel appearing for the accused

made reference to the judgment of this Court in case of

Subhash s/o. Ratan Chavan & Anr. Vs. The State of

Maharashtra (cited supra) to submit that considering

discrepancies in two statements of deceased (Exhibit 30

and 40) with regard to previous incident, they are not

reliable and cannot become basis of conviction. It is

pertinent to note that in said case in two different

statements deceased has attributed the act of pouring

( 23 )

kerosene and setting ablaze to two different accused and

since it was found to be a major inconsistency in multiple

dying declarations those dying declarations were not

relied upon. The law on the point of multiple dying

declarations states that there has to be material

discrepancies and inconsistencies in those dying

declarations in order to make them unreliable and not any

discrepancy. It need not be emphasized that there

cannot be identical/stereotype statements made by any

person at two different time. The criteria which is

required for the purpose of ascertaining the validity and

reliability of the statement is as to whether there is

consistency in respect of the material aspect of the

incident in those statements. In the present we find no

material inconsistency in the statement made by the

deceased with regard to the incident in which she was set

on fire.

23. There are oral dying declarations made by

deceased in addition to written dying declarations

( 24 )

recorded. Initially she informed Nikhil (PW-1) her son,

about the manner in which incident has occurred. While

deceased was admitted in the hospital Baban (PW-4),

brother-in-law of Varsha met her and to whom Varsha

made disclosure about the incident occurred at 3.00 am

on 19th April, 2015. She described the incident to this

witness in the same manner as was recorded in the

aforesaid two dying declarations and oral dying

declaration made to her son Nikhil.

24. Dr. Tushar (PW-6) during his evidence before

the Trial Court has deposed about he making enquiry with

the patient and on which patient told him that she was

caught and taken out from her house by three persons

and set her on fire.

25. It is sought to be argued on behalf of learned

counsel for accused Nos. 1 and 2 that all dying

declarations i.e. written dying declaration (Exhibit 30 and

40) and oral dying declaration allegedly made to Nikhil

( 25 )

(PW-1), Baban (PW-4) and Dr. Tushar (PW-6) are not in

conformity with each other. By referring to the evidence

on record it is argued that the prosecution has not proved

beyond doubt that the dying declaration was true

voluntary and not influenced by extraneous consideration.

In this regard reliance came to be placed on the case of

Uka Ram (cited supra). Perusal of the said judgment

however shows that deceased therein was a mentally sick

person and even then the prosecution did not take any

precaution therein to ensure that the incident was suicidal

or homicidal. Thus, in that case the probability of the

deceased committing suicide was not eliminated. There

also existed a doubt about the mental condition of the

deceased at the time she made dying declaration. It is

thus clear that the facts appearing in the said judgment

are completely different than case in hand and hence said

judgment has no application to the present case.

26. In the present case statement of deceased is

found consistent about incident in question, at all times

( 26 )

i.e. while giving information to her son Nikhil and brother-

in-law Baban and also the statement before Police Head

Constable and Executive Magistrate as well. To some

extent different version appears to have been given by

Dr. Tushar when he states that the patient told him that

she was caught and taken out of the house by three

persons and set her on fire. This witness is a Medical

Officer and in his testimony has stated that even during

recording of statement he was attending other patients

which indicates how busy he must be in discharging his

duties as Medical Officer in the hospital. In such

circumstance firstly it is not certain as to whether he

deposed before the Court precisely what was being stated

by the deceased. Even otherwise accepting his statement

as it is except for the fact that she was caught, the other

part of the statement is absolutely consistent with oral as

well as written dying declarations. To our mind this

statement of Medical Officer, does not create doubt about

genuineness of the statements recorded of deceased.

( 27 )

27. It was also tried to be canvassed on behalf of

the accused that the previous events mentioned in the

written dying declarations as well as testimony of Nikhil

are different and therefore doubt is created as to its

correctness. From statement of Nikhil at the most it can

be said that there was also a dispute between deceased

and Bharat (accused No.1) and Dhanraj (accused No.2)

over lending of amount of Rs.40,000/- and that some

incident occurred prior to 19/4/2015. Narration of

different prior incidents will not be sufficient to discard

statements by branding them as material contradictions

and inconsistencies.

28. In addition to the above evidence prosecution

through Investigating Officer has proved the recovery of

clothes of accused Bharat. The said recovery is assailed

on the ground that it has not been proved through

independent panch witnesses. There is no law that

evidence of the Investigating Officer or Police Officer

needs to be kept out of consideration for the reason of

( 28 )

being police personnel. Reliable evidence of police officer

can become admissible and acted upon. In the present

case record shows that attempts were made by

prosecution to issue summons to the panch witnesses and

as they failed to appear before the Court they were not

examined. Thus, it is not the case where no attempt was

made by the prosecution to prove the recovery

panchnama of the clothes of the accused from

independent person. The overall investigation conducted

in this case is not tainted with malafide. Thus, this Court

has no hesitance in accepting the evidence of

Investigating Officer for the proof of the seizure of clothes

of accused Bharat.

29. There is further evidence in the form of

recovery of plastic Can and two burnt match sticks from

the spot. As per the testimony of Baban (PW-4) according

to this witness spot of incident was shown by the father

of the deceased and from the said spot under spot

panchnama (Exhibit 23) white colour Can with kerosene

( 29 )

and pieces of burn saree and match sticks were seized.

Seized muddemal was sent to Chemical Analyzer and CA

report (Exhibit 12) indicates presence of kerosene

residues on the shirt of the accused. There is no

suggestion made to the Investigating Officer about not

keeping seized muddemal in sealed condition or

tampering of the evidence. Thus, defence was unable to

create doubt about the seizure of articles and its

preservation till sending it to CA being done as per law.

30. If the dying declarations as recorded by the

police personnel as well as Tahsildar are tested in view of

the law settled by the Hon'ble Apex Court regarding

acceptance and reliance thereon, in view of the attending

circumstances we have no hesitation in holding that dying

declarations (Exhibit 30 and 40) are voluntarily, truthful

and reliable. In comparison with oral dying declarations

as well as interse both written dying declaration there are

no major inconsistencies in order to keep them out of

consideration. Even though inherently oral dying

( 30 )

declaration is a weak piece of evidence but there is no

legal bar to use the same for the purpose of corroboration

to other material evidence on record. There is further

evidence against accused No.1 in the form of seizure of

his clothes stained with kerosene and the match stick

used by accused No. 2 to set deceased ablaze. Finally fact

regarding presence of accused at the spot at the time of

incident is further affirmed and gets strengthened by

deposition of Nikhil (PW-2) who had seen accused fleeing

away from the spot. Pertinently, case of accused is of

complete denial without offering explanation to

incriminating material against them.

31. Learned counsel for accused No. 3 submitted

that even if evidence led by the prosecution is accepted

as it is, there is nothing to indicate that there was

meeting of mind between accused No. 3 and co-accused

and that no inference can be drawn of common intention

of this accused in killing the deceased. He placed reliance

on the case of Jasdeep Singh Alias Jassu Vs. State of

( 31 )

Punjab (cited supra) in order to contend that in absence

of any such evidence conviction of the accused No. 3 is

not sustainable. By referring to the spot panchnama

showing seizure of Can it is submitted that the Can seized

from the spot was not a peculiar Can ordinarily used for

storing kerosene. It is submitted that there is no evidence

to indicate that accused No. 3 had knowledge about

kerosene being brought to the spot by accused No. 1 and

accused No. 2 being there with match stick. In absence of

this evidence according to him merely because accused

No. 3 had called deceased out of house no inference can

be drawn about she sharing common intention with the

co-accused to set deceased ablaze. The said submission is

countered by learned APP by pointing out that there is

overtact on the part of this accused in calling deceased

out of the house and thereby she facilitated the

commission of act of setting her on ablaze by the co-

accused. This according to him is more than sufficient

evidence to show common intention shared by all the

accused for committing crime in question.

( 32 )

32. No doubt at first blush substance appears in

the contention of learned APP that there was overtact on

the part of accused No. 3 of calling deceased out of house

and considering the fact that she did the same at wee

hours may suggest her conscious participation in the

crime. However, at the same time from looking at the

very set of facts from different angle demonstrates that

another inference also can be drawn therefrom.

33. It is settled position of law that from the

evidence on record if two different views/inferences are

possible to be drawn, the one in favour of the accused

must be accepted. In this regard reliance can be placed

on the judgment of Hon'ble Apex Court in the case of K.

Gopal Reddy vs State Of Andhra Pradesh reported

in 1979 AIR 387, 1979 SCR (2) 265, it is held that,

"It stems out of the fundamental principle, of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and

( 33 )

remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable.

"A reasonable doubt", it has been remarked, "does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reason."

34. From the evidence on record though it can be

said that accused No. 3 has committed overtact by calling

deceased out of house, however, that would not be

sufficient to attribute her knowledge to set deceased on

fire. It is necessary to take note of the fact that the

plastic Can seized from the spot is not the one

typically/ordinarily used to store kerosene oil. Secondly,

( 34 )

this accused is not member of family of co-accused nor

any evidence is led to show their previous meeting to

share common intention. Ultimately burden is on

prosecution to prove guilt of each accused beyond

shadow of reasonable doubt. It would be mere

speculation in absence of cogent evidence on record to

hold that she shared common intention with co-accused

to set her ablaze. No conviction of this accused therefore

is permissible on speculation sans concrete evidence.

Accused No.3 therefore deserves to be let off, by

extending benefit of reasonable doubt.

35. Scrutiny of evidence on record leads to the

finding that prosecution has proved guilt of accused Nos.

1 and 2 beyond reasonable doubt and their appeal

deserves rejection. Whereas for want of conclusive proof

of guilt of accused No. 3 she needs to be acquitted. Hence

the order.

ORDER

(i) Criminal Appeal No. 499 of 2016 is dismissed.

( 35 )

(ii) Criminal Appeal No. 807 of 2022 is allowed.

(iii) The impugned judgment of conviction and order of

sentence dated 22nd July, 2016 in Sessions Case No. 58 of

2015 passed by the Additional Sessions Judge,

Ambajogai, Dist. Beed to the extent of accused Nos. 1

and 2 stands confirmed.

(iv) The impugned judgment of conviction and order of

sentence dated 22nd July, 2016 in Sessions Case No. 58 of

2015 passed by the Additional Sessions Judge,

Ambajogai, Dist. Beed to the extent of accused No.3-

Manisha Sampati Muley is hereby set aside. Accused No.

3-Manisha Sampati Muley stands acquitted.

(v) The accused No.3-Manisha Sampati Muley be

released forthwith, if not required in any other case.

(vi) Fine amount deposited by accused No. 3 Manisha

Sampati Muley, if any, be refunded to her.

(R. M. JOSHI, J.)                                (R. G. AVACHAT, J.)


SSP/criappeal499