Shivkaran Ganpati Gaikwad vs The State Of Maharashtra And Ors
2023 Latest Caselaw 729 Bom

                                                                 revn-169-2007 judg.odt
                                          (1)


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

            CRIMINAL REVISION APPLICATION NO.169 OF 2007

 Shivkaran s/o Ganpati Gaikwad,
 Age : 65 years, Occ. Agril.,
 R/o : Dabka, Taluka : Omerga,
 District : Osmanabad.                                   ...Petitioner

          Versus

 1.       The State of Maharashtra,
          (Copy to be served on A.P.P.
          Bombay High Court, Bench at
          Aurangabad)

 2.       Tirupati s/o Srinivas Pawar,
          Age : 31 years, Occ. Agril.,
          R/o : Dabka, Taluka Omerga,
          District : Osmanabad.

 3.       Srinivas s/o Krushnaji Pawar (Abated)
          Age : 63 years, Occu and
          R/o : As above.

 4.       Mahesh s/o Srinivas Pawar,
          Age : 27 years, Occu: Agril.,
          and education,
          R/o : as above.

 5.    Sheshabai w/o Srinivas Pawar,
       Age : 51 years, Occu: Household,
       R/o : as above.                           ...Respondents
                               ...
 Mr. N.G. Kale, Advocate for Applicant.
 Mr Parikshit S. Mantri h/f Mr. Parag V. Barde, Advocate for
 Respondent Nos.2, 4 and 5.
 Mr. S.B. Narwade, APP for the Respondent/State.
                               ...
                                   CORAM : S.G. MEHARE, J.

RESERVED ON : 18th OCTOBER, 2022 PRONOUNCED ON : 20th JANUARY, 2023

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JUDGMENT :-

1. The petitioner/father of the deceased has preferred the

present revision impugning the judgment and order of acquittal of the

learned Additional Sessions Judge, Omerga, in Sessions Case No.89 of

2004 dated 21.04.2007.

2. The respondents nos.2 to 5 were tried for the offences

punishable under Section 302, 498-A, 306 r/w 34 of the Indian Penal

Code.

3. The brief facts of the case may be summarised that the

respondents and the deceased hailed from the same village. The

deceased married respondent no.1. The deceased had marital

disputes. She died within six months of her marriage. Due to the

dispute, the respondents went to reside at Omarga. The deceased was

living alone in the house of the respondents. On the day of the

incident, there was the harvesting of the jowar in the field where the

incident happened. The incident occurred on 27.10.2004 at about

1.30 pm. in the field.

4. Learned counsel for the applicant would vehemently

argue that the learned trial court did not appreciate the oral as well as

the documentary evidence correctly. Hence, the Court erroneously

concluded the acquittal. The learned Additional Sessions Judge failed

to appreciate the three statements of the deceased as to the cause of

her death. Though the statements were consistent and free from

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variations about the allegations against the accused, the learned

Sessions Judge unnecessarily gave weight to the evidence of the

defence witnesses without testing their credibility and veracity

correctly. Their testimony was unreliable and unbelievable. Impugned

judgment is without sound reasons and purely based upon

assumptions and presumptions. The learned Additional Sessions

Judge did not consider the proved facts which were sufficient to hold

them guilty.

5. In addition to the above arguments, learned counsel for

the applicant has relied upon the case of Satyajit Banerjee and Ors Vs.

State of West Bengal and Ors, 2005 Cri.L.J. 648 and argued that the

High Court can not direct the trial Court to hold the retrial. However,

the Court has to direct the trial court to rewrite the judgment. He

further relied on the case of S Sarubai Laxman Bhokare and Ors Vs.

State of Maharashtra, 2008 Cri. L.J. 1866 and argued that the learned

Judge disbelieved the statement as to the cause of death led by the

deceased on flimsy grounds. Minor inconsistencies and discrepancies

in such statements are not grounds to discard the statement. Relying

on the case of Ganpat Bakaramji Lad Vs. The State of Maharashtra,

2018 ALL MR (Cri) 2249, he would argue that the absence of

endorsement about the fitness of the declarant and reading over the

dying declaration to the declarant does not by itself render the dying

declaration unacceptable. He referred to the evidence led by the

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prosecution on record and finally argued that the impugned order is

erroneous, improper and incorrect. Hence, it may be set aside.

6. Learned counsel for respondent nos.2, 4 and 5 relying on

the case of Bindeshwari Prasad Singh Vs. State of Bihar of the Hon'ble

Supreme Court passed in Appeal (Crl.) 808 of 2002 dated 13.08.2002

argued that in exercise of revisional jurisdiction against an order of

acquittal at the instance of private party, the court exercises only

limited jurisdiction and should not constitute itself into an appellate

court which has much wider jurisdiction to go into question of facts

and law and to convert the order of acquittal into one conviction.

Further, he relied on the case of Akalu Ahir Vs. Ramdeo Ram, 1973

AIR (SC) 2145 and argued that normally, the High Court should not

direct the retrial unless there is some infirmity rendered in the trial

defective. On revision, the High Court expressly prohibited from

converting an acquittal into conviction.

7. The learned counsel raised a legal question that the

statement of the deceased as to the cause of death would prevail over

the ocular evidence. To answer the question, the statement of the

deceased as to her cause of death and the evidence of the ocular

witnesses, along with circumstances, would require scrutiny for

limited purpose.

8. The first witness, PW-1, Head Constable Naim Sheikh,

has proved the statement of the deceased as to her cause of death

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below Exhibit-52. He admitted that when he had been to the hospital,

the parents and brother of the deceased and police Patil of village

Aurad were present there. However, he denied that they were present

when he recorded the statement of the deceased. He further admitted

that the police Patil of Aurad was present there as a witness. PW-2, Dr.

Kanade endorsed that the deceased was conscious. He admitted that

he did not put any endorsement that he examined the patient before

and after recording her statement. He also admitted that he had

administered Ampicillin, Rentac, Diclofenac to the deceased. Those

injections begin to affect after one minute and last for seven hours.

PW-3 Maniksing Rajput, the Police Officer, also deposed that he had

confirmed the physical and mental condition of the deceased to give

the statement from the doctor present in the hospital. He obtained the

said endorsement on the statement of the deceased. He has proved

her statement below Exhibit-56. PW-4, Mohd Shafik, Special Judicial

Magistrate, deposed that on 27.10.2004, he received a message at

07.30 pm to record the statement of the deceased. He went to the

Civil Hospital. The constable gave him a letter. When he went to the

ward to record the statement of the deceased, he showed the letter to

the nurse on duty, and then he went to the patient. Dr. Kale was

present there. He confirmed the condition of the deceased about her

ability to give the statement. He recorded the statement of the

deceased as per her narration below Exhibit-59.

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9. First statements of the deceased as to her cause of death

were recorded on 27.10.2004 after the receipt of MLC. Her second

statement as to the cause of death was recorded on the same day at

06.20 pm, and third one was also recorded on the same day at 08.05

pm. The statements as to the cause of death of the deceased were

consistent as regards the allegations that her husband, father-in-law,

and brother-in-law caught her and her mother-in-law poured

kerosene over her and set her on fire.

10. The learned Additional Sessions Judge, while

appreciating the evidence of the relevant witnesses on the dying

declarations, has observed that the close scrutiny of three dying

declarations makes it abundantly clear that these dying declarations

are inconsistent with each other except for catching of accused nos.1

to 3 and setting her on fire by accused no.4. The learned Judge found

the discrepancy in those statements as regards informing the incident

to her mother and father by different persons. The learned Additional

Sessions Judge also observed that apart from the inconsistencies in

those dying declarations, it is clear that those dying declarations were

motivated by animus and vindication. He also observed that in the

agreement Exhibit-64, it was mentioned that if her husband did not

marry her, she would get a share in the field. Therefore, the deceased

and her parents were interested in the property, much less the share

of accused no.1. It is also observed that even if the deceased was

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presumed to be in a condition to give the statement, it was motivated

with animus against the accused persons; hence, cannot take the

place of evidence to hold the accused guilty.

11. Apart from doubting the statement of the deceased as to

the cause of death, the learned Additional Sessions Judge relied upon

the defence witnesses who have deposed that the deceased had

brought kerosene with her and she herself poured kerosene on her

person. This evidence has gone unchallenged. DW-3 and DW-4

deposed that the deceased went to a cattle shed, brought the bottle

containing kerosene, poured it on her person and set herself on fire.

12. The learned Additional Sessions Judge disbelieved the

theory of pouring kerosene on her person on the basis of no fire to the

hybrid crop where the incident happened and held it a material

contradiction. The learned Judge also disbelieved the prosecution

case for the non-examination of eyewitnesses Shivaji Kerba and

Shivaji Ganpati. He also doubted the evidence of PW-1 for the reason

that why he allowed the police Patil Aurad to present there as a

witness.

13. Section 164 of the Criminal Procedure Code speaks of the

contradiction and omission that falsifies the evidence of the witness.

However, such contradiction and omission should be significant and

material. If the contradiction and omission are not significant and

material and do not affect the material evidence, such minor

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contradiction and omissions shall be omitted and would not affect the

material evidence.

14. The law is well settled that if multiple dying declarations

are consistent, those are sufficient to hold the accused guilty. The

dying declaration is free from tutoring, and prompting is reliable

evidence.

15. To rebut the evidence of the deceased, who was not

available for cross-examination as to the cause of her death, the

accused relied on the witnesses who were allegedly present in the

field. They have deposed that it was the deceased had brought a

kerosene can, poured it on her person and ablaze.

16. Reading the prosecution and defence witnesses together,

it can safely be believed that the incident happened in the field and

all the accused were present at the time of the incident. It is also not

in dispute that the deceased died within four months of her marriage.

The defence witnesses are also consistent that the deceased came to

the field when they were plucking the hybrid crop. She brought the

kerosene and ablaze herself in front of the cattle shed. Then her

parents came there. They beat the deceased and took her with them

in an auto rickshaw.

17. The Hon'ble Supreme Court has discussed the law on the

dying declaration in many cases. It has been settled that dying

declarations are admissible under section 32(1) of the Indian

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Evidence Act. The person making a statement as to his cause of death

must narrate the cause and circumstances of his death. Corroboration

is not always necessary if the dying declaration is complete in its

accusation, and there is nothing to show that the maker of the

statement had anything further to add. There is no prescribed format

to record the dying declaration, and it may be in question-answer

form or narrative. The dying declaration stands on the same footing

as many other pieces of evidence and has to be judged in the light of

surrounding circumstances and with reference to the principles

governing the weighing of evidence. The Hon'ble Supreme Court, in

the case of Arvind Singh Vs. State of Bihar, AIR 2001 SC 2124 , has

observed that apart from the care and caution factors, the dying

declaration ought otherwise to be treated as trustworthy. The issue

thus becomes as to whether the dying declaration has been able to

bring about a confidence thereon or not--- is it trustworthy or is it a

mere attempt to cover up the latches of investigation; it must allure to

the satisfaction of the Court that reliance ought to be placed thereon

rather than a distrust. The confidence of the Court the summon

bonum, and in the event of there being any affirmation thereto in the

judicial mind, question of any disbelief of distrust would not arise. In

the event, however, of there being some infirmity, howsoever

negligible it be, the Court, unless satisfied about the credibility

thereof, ought to look for some corroboration, if however, it is

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otherwise, question of requirement of corroboration would not arise;

dying declaration alluring piece of evidence to sustain the conviction.

18. An important requirement to believe the dying

declaration is a proper mental condition to make a consciously

truthful statement. However, the law has been developed that the

endorsement of the medical officer as to the fitness of the mental

condition of the maker of the dying declaration is not the legal

requirement. The satisfaction of the person recording the dying

declaration is sufficient if it inspires confidence. The Hon'ble Supreme

Court (Constitution Bench), in the case of Laxman v State of

Maharashtra (2002) 6 SCC 710, has laid down the law that what is

essentially required is that the person who records a dying declaration

must be satisfied that the deceased was in a fit state of mind. Where it

is proved by the testimony of the Magistrate that the declarant was fit

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 certification by the doctor is

essentially a rule of caution, and therefore, the voluntary and truthful

nature of the declaration can be established otherwise.

19. In the case of Nallapati Sivaiah Vs. Sub-Divisional Officer,

Guntur, Andhra Pradesh, (2007) 15 SCC 465 in paragraph no. 52 has

observed thus;

"52. The dying declaration must inspire confidence so as to make it safe to act upon. Whether it is safe to act upon

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a dying declaration depends upon not only the testimony of the person recording dying declaration be it even a Magistrate but also all the material available on record and the circumstances including the medical evidence. The evidence and the material available on record must be properly weighed in each case to arrive at a proper conclusion. The Court must satisfy itself that the person making the dying declaration was conscious and fit to make statement for which purposes not only the evidence of persons recording the dying declaration but also cumulative effect of the other evidence including the medical evidence and the circumstances must be taken into consideration."

20. In the case at hand, as against the dying declarations of

the deceased alleging that she was set to fire, the accused came with a

case of suicide. To prove their case, they examined the labours

working in the field at the time of the alleged incident. Before

appreciating the defence, it would be appropriate to discuss the

evidentiary value of the defence witness. In Munshi Prasad v state of

Bihar, AIR 2001 SC 3031, the Hon'ble Supreme Court has observed

that the issue of credit and trustworthiness of defence witnesses is to

be tested by the standards as are applicable to prosecution witnesses.

A lapse on the part of a defence witness cannot be treated differently

from any such lapse on the part of prosecution witness.In the case of

State of Haryana v Ram Singh 2002 Cr. LJ 987(SC) , it has been

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observed that a defence witness is entitled to equal treatment with a

prosecution witness.

21. The investigation officer had recorded the statements of

the women plucking the jowar corns in the field at the time of the

incident. They were independent eyewitnesses to the incident.

However, the prosecution withheld and did not call them into the

witness box to state the facts they had witnessed. Withholding the

material witness has a legal consequence. Section 114 Illustration (g)

of the Indian Evidence Act speaks of the presumption that the Court

may presume that evidence which could be and is not produced

would, if produced, be unfavourable to the person who withholds it.

It is a cardinal rule in the law of evidence that the best available

evidence should be brought before the Court. The prosecution cannot

withhold the best evidence only for the reason that the testimony of a

such witness is against its case. The prosecution is always supposed to

be neutral. It does not investigate the crime only for the person

aggrieved. It has to treat the accused, and the person aggrieved

equally. Its primary job is to bring the true facts and material on

record and assist the courts in arriving at the correct conclusion.

Withholding the best evidence gives rise to an adverse inference

against the person withholding such evidence. The prosecution has no

case that the accused won over the said witnesses or failed to appear,

even called on summons. If there had been an explanation for the

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failure to examine the best available witnesses, the aspect of

withholding such evidence would have been considered differently. In

view of the facts and law, the Court concludes that an adverse

inference, as discussed above, is liable to be drawn against the

prosecution for withholding the best evidence.

22. Secondly, the prosecution did not explain the injuries on

the person of the accused. Failure to explain such injuries gives rise to

the presumption that the prosecution has suppressed the information

as to the nature of the occurrence, the witnesses who have denied

such injuries are deposing lie before the Court, and the self-defence of

the accused becomes more plausible, shifting the burden on the

prosecution.

23. The Hon'ble Supreme Court, in the case Sharad

Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622 ,

reviewing the authorities on the rule of dying declaration and clear

language of section 32(1) of the Evidence Act, has observed that the

following preposition emerges of the said provision:

(1) Section 32 of the Indian Evidence act is an exception to the

rule of hearsay and makes admissible the statement of a person who

dies, whether the death is homicide or suicide, provided the statement

relates to the cause of death or exhibits circumstances leading to the

death. In this respect, as indicated above, the Indian Evidence Act, in

view of the peculiar conditions of our society and the diverse nature

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and character of our people, has thought it necessary to widen the

sphere of Section 32 to avoid injustice. (3) The second part of section

32 is yet another exception to the rule that in criminal law the

evidence of a person who was not being subjected to or given an

opportunity of being cross examined the accused, would be valueless

because the place of cross examination is taken by the solemnity and

sanctity of oath for the simple reason that a person on the verge of

death is not likely to make a false statement unless there is a strong

evidence to show that the statement was secured either by prompting

or tutoring.

24. Section 32 of the Evidence Act falls under Chapter II

titled as "Of the relevancy of Facts". Section 5 of the act provides for

the evidence to be given of the existence or non-existence of every

facts in issue and of such other facts as are declared in the said

chapter to be relevant. It restricts the evidence, other than the

evidence which is declared not relevant. What is the relevancy thus

fully explained in SS 6 to 11. Section 6 relates to res gestae. Section 7

deals with the facts which may be given of facts in issue and relevant

facts. The facts those are occasion, cause or effect, immediate or

otherwise, of the relevant facts. Section 8 deals with motive,

preparation and previous or subsequent conduct. Section 9 deals with

the identity of anything or person whose identity is relevant. Section

10 refers to things said or done by the conspirators in reference to the

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common design. Section 11 deals with the facts that are irrelevant

become relevant. The statement made by such a person who cannot

be called a witness shall be relevant to the facts. If any such facts have

been stated, such facts are relevant.

25. In the case of Sharad Sarda (cited supra), the Hon'ble

Supreme Court in paragraph no.10 referred to the book by Woodroffe

and Ameer Ali (Vol.II) namely" Law of Evidence" and observed that

the authors have collected all the cases at one place and indicated

their conclusions thus:

"To sum up, the test of the relevancy of a statement under Section 32(1), is not what the final finding in the case is but whether the cause of the death of the person making the statement comes into question in the case. The expression 'any of the circumstances of the transaction which resulted in his death'; is wider in scope than the expression 'the cause of his death'; in other words, Clause (1) of Section 32 refers to two kinds of statements: (1) statement made by a person as to the cause of his death, and (2) the statement made by a person as to any of the circumstances of the transaction which resulted in his death.

The words, 'resulted in his death' do not mean 'caused his death', Thus it is well settled that declarations are admissible only in so far as they point directly to the fact constituting the res gestae of the homicide; that is to say, to the act of killing and to the circumstances immediately attendant thereon, like threats and difficulties acts, declarations and incidents, which constitute or accompany and explain the fact or transaction

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in issue. They are admissible for or against either party, as forming parts of the res gestae."

26. The prosecution has a case that the statement of the

deceased given to two policemen and a special executive magistrate

proves the homicidal death. For homicide, there shall be an act of

killing by the person against the person. The killing of a person by

another person is homicide. Therefore, in the case at hand, the

burden was on the prosecution to prove that the deceased died due to

the acts of the accused. As against the homicide, the accused came

with a case of suicide. Suicide is a result of the self-acts of the person

that may end his or her life. It is self-killing. Here, it is not disputed

that the deceased died of burn injuries. Burn injuries are possible by

own acts or by the acts of another person. The witnesses examined by

the prosecution are not eyewitnesses. Its case exclusively rests upon

the statement of the deceased. As against this, the accused proved the

presence of the ocular witnesses on the spot of the incident.

27. Suicide also requires preparation. Firstly it requires

mental preparation and then selection of time, place and object,i.e. a

weapon to cut the body, a poisonous substance to consume, a wire or

cloth to hang, a well, river or a high place like a high floor of the

building to jump, the inflammable substance to burn self with igniting

material. Therefore, the past conduct of the person committing

suicide is relevant. The frustration, or loss of the hopes overcoming

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the adverse situations that is going on, no hopes in life, unbearable

mental or physical torture and harassment are the relevant factors to

ascertain whether it was a homicide or suicide because both things

have relevance both cases.

28. Fact means and include, any mental condition of which

person is conscious. Illustration (d) of the definition of the expression"

Fact" in section 3 of the Indian Evidence act has interpreted the term

"Fact" in the words that a man holds a certain opinion, has certain

intention, acts in good faith or fraudulently, or uses a particular sense

or is or was at a specified time conscious of a particular sensation is a

'fact'. Clause 2 of the said section speaks that any mental condition of

which any person is conscious is a 'fact'. That refers to the internal

facts which are the subject of consciousness. The facts and events

which have occurred in the past and in the presenti falls under the

definition of fact.

29. The existing situations before the incident are most

relevant to conclude whether it is a homicide or suicide. The Hon'ble

Supreme court, in the case of Sharad Sarda, cited supra, has laid

down the law that the dying declaration is inadmissible if there is

strong evidence to show that statement was secured either by

prompting or tutoring. Section 32 does not speak of homicide alone

but includes suicide also; hence all the circumstances which may be

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relevant to prove the case of homicide would be equally relevant to

prove a case of suicide.

30. The Court is not oblivious that under revisional

jurisdiction reappreciation of evidence is exceptional but to ascertain

whether it was a homicide or suicide, the relevant facts appears

consideration.

31. In her first dying declaration, the deceased stated that

her husband, in-laws and brother-in-law do not reside with her.

Hence, she went to the field to bring the hybrid corns. In her second

dying declaration, recorded after about four and half hours, she had

developed a story of ill-treatment at the hands of the accused for the

demand of Rs. 40,000 for securing a job for her husband. For the last

two months, she has been residing alone. The accused were regularly

visiting her house and abusing and beating her. On the day of the

incident also they beat her in the field where the incident occurred. In

her third dying declaration, recorded at about 7.30 pm., she stated

that all of a sudden, the accused set her on fire. She had ill-treatment,

but she tolerated and lastly, they ablaze her. She stated that she was

set on fire in the standing crop of jowar. However, against the

statements as to the cause of death, the defence witnesses consistently

deposed that the deceased came to the field and asked the labours to

stop plucking. They asked her for their wages. Then she went towards

the cattle shed, poured kerosene on her person and set herself on fire.

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It is also evident that the deceased had brought a kerosene can.

Nothing has been extracted from their cross-examination. On the spot

of the alleged incident, as per the deceased statement, there were no

burning marks on the crop or any sign on the earth. The spot of

occurrence as per the spot panchanama is near the said cattle shed.

The facts collected through the spot panchanama also seriously affect

the statement of the deceased as regards the place of the incident.

32. It is evident that the jowar corns were collected at the threshing

floor. Normally, in a field, unless there is a specific reason, the

agriculturists do not carry kerosene with them in the field. The

inflammable are kept away from the crop because there may be a

heavy risk of burning the crop. Reading the evidence of defence

witnesses with the spot panchanama leads to make the prosecution

story doubtful.

33. The things that happen around a man and in his life have

great impact on his/her life and thoughts. Such things/events are the

external aid that shapes his thoughts. Man cultivates his thought on

the basis of the things he experienced and sensed in life. Experiences

of various subjects in daily life also affect his reactions. The

experiences arising out of marriage may have a significant impact on

the life of women. If her marital expectations are seen as not

accomplished, she may take an extreme and hard decision. Social

background, family culture and customs play a vital role and are

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responsible for unexpected steps. Constant disappointment may lead

to depression, and depression may lead to feelings of revenge. A

human being reacts to his emotions, feelings, passion, failures,

success, and past experiences, which can be experienced by his

conduct. For assessing the mental condition of a human being at a

particular time, the things that happened in the recent past are the

best measure. The law has recognised all these things that may

change the mind of a man even on his last breath. Such incidents

form a motive. There can be no action without motive. The motive of

a person can only be ascertained by the inference drawn from the

facts.

34. In the case at hand, what was the motive of the deceased

going to the field with a kerosene can and a match stick has to be

ascertained for the reason that it was her abnormal behaviour. She

had no reason to go to the field with such articles. This is the relevant

circumstance that may help to ascertain the mental condition of the

deceased before the incident.

35. The next fact that may help assess the mental condition

of the deceased was the circumstance in which she married accused

no.1. The marriage of the deceased has a peculiar history. She and

accused no.1 Tirupati had decided to love marriage, concealing from

their parents. However, they learnt about their plan. Hence, their

parents decided to perform their marriage. An agreement was

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executed between their fathers. The deceased and her husband

Tirupati were not a party to the said agreement. One strange term

giving a right to get the income from the share of accused Tirupati, if

he would refuse to marry was inserted in the agreement. She would

have no right to alienate the said share was the another term. The

facts and circumstances reveal that there was no good beginning to

her marriage, and it was not peaceful. She was living alone in the

house of the accused. The accused have proved that when they were

compelled to shift to Umarga her father inducted her forcefully in

their house, and she was residing alone in that house at village Dabka

for two months before the incident, as the accused were shifted to

Umarga. The accused have a case in which the deceased's father had

an ill eye over the share of Tirupati and wished to transfer her

husband's share in the name of the deceased. She was threatening to

suicide. It is proved that the accused Shrinivas had filed a suit for a

permanent injunction against the deceased and her father for

restraining them from obstructing the cultivation. The said suit was

filed on 29.09.2004.

36. Bearing the above facts in mind, the possibility of getting

depressed appears high. She seems to have lost hope in her marital

life. That may lead to taking a drastic step. Since it was harvesting

season, she knew that the accused were in the field. When she went

to the field, she asked the labour to stop plucking hybrid corns else

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she would do something. When the labours asked for their wages, she

went towards the cattle shed, poured the kerosene and set on fire at

her own.

37. The above pre-incident events may have had a great

impact on her mind; therefore, she may have prepared her mind to

end her life. Her parents were with her while taking her to various

hospitals. The possibility of cooking up a story of dowry demand

cannot be ruled out as in her first statement; she did not allege that

the accused ill-treated her for illegal demand of money. Therefore, the

subsequent dying declarations alleging the demand for dowry fall

under the shadow of doubt. As far as the first dying declaration is

concerned, the accused have produced strong circumstances for

assessing her mental condition. These relevant facts are sufficient to

infer that she had no good mental condition.

38. Considering the facts and the law discussed above, it

emerges that where it is proved that the mental condition of the

deceased was motivated adversely due to the immediate past events,

the circumstances do not support the dying declaration, and the

evidence of ocular witnesses inspires the confidence, the ocular

evidence would prevail over the statement of the deceased as to the

cause of his death. Considering the circumstances and the evidence

produced in the case, the Court comes to the conclusion that the

events that happened in her marital life motivated her intellect, and

revn-169-2007 judg.odt

her mental condition became vindictive. Therefore, she did not give

the correct statement as to her cause of death.

39. For the reasons stated above, the Court discards the

statement of the deceased as to her cause of death, believes the ocular

witnesses, and agrees with the findings of the learned Sessions Judge.

40. The allegations of demand for dowry are also not

believable for the reasons mentioned above.

41. The reasons given by the learned Sessions Judge for

acquittal appear legal, proper and correct. Hence, the impugned

judgment and order do not warrant interference. There is no

substance in the revision application.

42. The application stands dismissed.

43. Rule stands discharged.

44. The record and proceedings be returned to the Court of

Additional Sessions Judge at Omerga.

(S.G. MEHARE, J.)

Mujaheed//