The Dying Declaration (Exh. 26).
4 Endorsement of physical and mental condition of D.D. Exh. 26
deceased Sangita on
5 Seizure panchanama of articles and the spot Exh. 40
panchanama
6 The inquest panchanama Exh. 38
7 The seizure panchanama of matchbox Exh. 42
8 Request letter for carrying the seized articles for Exh. 45.
Chemical Analyzer examination
9 The spot panchanama Exh. 40
10 C. A. Report Exh. 85
11 Marriage card Exh. 55
11. After the evidence is over, the statements of accused were
recorded under section 313 of the Criminal Procedure Code at Exh. 18, 19,
20 and 21.
12. PW-4 Vatchalabai W/o Das Thombre and PW-5 Das Thombre
deposed that after marriage, their daughter Sangita went for cohabitation
with her husband accused no.1 and after four days of her marriage, Sangita,
alongwith her husband accused no.1 had been to their house. After halting
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for the night, on the next day, Accused No.1 and deceased Sangita proceeded
towards Tuljapur on a motorcycle, but midway, Accused No.1 Dhanraj caused
Sangita to fall from the motorcycle on the road and then proceeded ahead.
Thereafter on information given by the truck driver, Accused No.1 Dhanraj
returned back and took Sangita to hospital at Tuljapur. The said fact was
narrated them by the deceased. As per evidence of PW4 and PW5 their
married daughter Sangita was subjected to cruelty at the hands of accused
persons for demand of dowry of Rs.20,000/- for construction of house. So
also, deceased Sangita was sent by accused persons with PW4 (father of
deceased) to bring Rs.20000/- for construction of house.
13. PW4 and PW5 cross examined on behalf of the accused and
tried to bring on record that the accused are having 10-11 acres land and
accused no.3 is serving in municipality, so also, financial condition of the
accused persons were good, therefore, no question arose of raising any
demand for the alleged dowry; likewise, they never subjected the victim to
cruelty. However, it has been brought on record that after two months of
marriage, Sangita was burned.
14. P..W. 2 Shri Pratap Prabhakar Kulkarni, ASI, who recorded dying
declaration of deceased Sangita deposed at Exh. 24 that, on 12.08.2001 he
was on duty as Chouki Amaldar in Civil Hospital, Osmanabad and on that
day the medical officer informed him by letter Exh. 25 about the burned
condition of Sangita Dhanraj Yedale. He further deposed that, he went into
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the burn ward alongwith medical officer Smt. Garad and got examined the
said patient through medical officer. He further deposed that, said medical
officer opined that, the patient is in conscious condition and then he
recorded the statement of injured Sangita in question and answer form. PW2
deposed that when he asked the next question, the injured did not speak so
also she did not answer who brought her to the Hospital and at that time
PW-3 Dr. Sunita Garad examined Sangita and opined that the patient is not
in condition to give the further statement. Thereafter, said Medical Officer
made endorsement on the statement and signed it. PW-3 Medical Officer
certified that patient was conscious at about 9.50 a.m and she became semi
unconscious at about 10.00 a.m. PW-2 deposed that he recorded statement
of burnt Sangita on 12.08.2001 at about 9.50 a.m to 10.00 a.m.
15. In cross examination of PW-2, it has been tried to bring on
record that he did not personally ask the patient Sangita about her conscious
condition and no endorsement is made by the medical officer about
consciousness of patient on Exh. 26- Dying Declaration but said suggestion
was denied. Though suggestion was given about presence of parents of
Sangita but said suggestion was denied by PW2. PW2 admitted in his cross
examination about bringing patient Sangita by her in-laws and
husband/accused No.1 to the hospital. So also, there is no statement at the
beginning of Exh.26 about endorsement of medical officer to show
consciousness of the patient Sangita to give statement. PW-2 denied that
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patient Sangita was not conscious while recording her statement. PW-2
further denied that patient Sangita had not stated him about pouring
kerosene on her person by her in-laws and her husband set her on fire with
the matchstick. However, PW-2 admitted that Sangita became unconscious
after completion of 14th question put to her but he denied about obtaining
her thumb impression after she became unconscious. PW2 further stated in
his cross examination about obtaining thumb impression of patient Sangita
in presence of Medical Officer PW3, when Sangita was not able to answer
further questions and obtained thumb impression of the patient immediately
after completion of 14th question.
16. As per evidence of PW-3 Dr. Sunita Garad, Medical Officer patient
Sangita Dhanraj Yedale was admitted in the Hospital on 12.08.2001 at about
09.15 a.m., due to burn injuries. The said patient was referred by the
Medical Officer, Rural Hospital, Tuljapur. PW3 deposed that she examined
the patient and issued request letter Exh. 25 to the police about admission
of Sangita in the Hospital with burn injuries. Thereafter, Police personnel
PW2 Pratap Kulkarni visited the burn ward. Thereafter she re-examined the
patient Sangita on request of P.W. 2 and found that the patient was conscious
and under the state of mind to give her statement. Therefore, PW-2 ASI
Pratap Kulkarni directed relatives of the injured to go out of burn ward and
recorded statement of injured Sangita in question and answer form. After
making preliminary enquiry about solemnization of her marriage, full name,
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address, place of marriage, PW-2 recorded statement of the deceased,
wherein, it was stated that, her in-laws accused Nos. 2 and 3 poured
kerosene on her person and her husband accused No.1 set her on fire with
matchstick.
17. Prosecution examined PW-1 Dr. Vikram Alangekar, who conducted
postmortem of dead body of Sangita on 12.08.2001 at about 3.55 p.m. to
4.50 p.m. As per evidence of PW-1, he found injuries superficial to deep,
head, neck face 9%, right upper limb 9%, left upper limb 9%, chest and
abdomen 18%, back 18%, perinea- 1%, right lower limb 17% and left lower
limb 17, total 98% and mentioned the injuries in column No. 17 and issued
Postmortem report Exh. 23. In cross examination, PW1 admitted that
injuries mentioned in Column No.17 of Postmortem report may be possible
if a person under the angry state of mood may pour kerosene on his/her
person and set herself on fire.
18. Learned counsel appearing for the appellants has filed written
notes of argument and orally argued the matter for a considerable time.
Learned counsel appearing for the accused canvassed in vehemence that PW-
2 has scribed the Dying declaration Exh 26 and Medical Officer PW-3
admitted in her evidence that the condition of Patient Sangita was very
critical. PW-1 Medical Officer Dr. Vikram Manikrao Alangekar who
conducted autopsy on dead body of Sangita deposed that the entire body of
deceased was burned and described burn injuries in column No.17 of the
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postmortem report Exh.23. Therefore, it proves that the entire body of
deceased Sangita was burned including head, neck, face, right upper limb,
right lower limb, left upper limb, left lower limb, total 98%. Therefore, as
per Rule 9 of the Medical Jurisprudence, these are considered as 100%
injuries, which are corroborated by postmortem report Exh. 23 as well as
evidence of PW-10 Dilip Masa Jadhav, witness to the inquest Panchanama
Exh. 38. Therefore, the patient Sangita was not conscious and she was not
capable to give her statement, hence, said statement is not reliable and not
sufficient to award conviction.
19. Learned counsel appearing for the appellants accused further
canvassed that PW-1, Medical Officer conducted Postmortem on dead body
of Sangita and opined about cause of death of deceased due to shock and
98% superficial to deep burn. Therefore, condition of deceased was very
critical and she was not physically fit and not in state of mind to give her
dying declaration Exh. 26. Therefore, the said dying declaration is not
reliable. However, the learned trial court heavily placed reliance on said
dying declaration Exh. 26 and wrongly convicted the appellants/ accused.
20. Learned counsel appearing for the appellants accused further
canvassed that thumb impression of deceased Sangita on dying declaration
Exh 26 is not attested by PW-2 and PW-3 because both these witnesses
admitted in their cross examination that thumb impression was not attested.
PW3 Medical Officer Dr. Sunita Garad admitted in her cross examination
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about obtaining thumb impression of patient after 14th question at about
10.00 a.m. But the endorsement made by PW-3 Medical Officer shows that
at about 10.00 a.m. deceased Sangita become unconscious. PW-2 API Pratap
Kulkarni admitted in his cross examination about obtaining thumb
impression of Sangita at about 10.00 a.m. Therefore, this fact itself proves
that thumb impression of patient Sangita was obtained when she had
become unconscious. So also, after 14th question, the contents of Exh. 26
were not read over and explained to deceased Sangita about recording the
same as per her say and answers to Question Nos. 8 and 9 not been
answered by patient Sangita. It is further canvassed that question Nos. 8
and 9 were kept blank because the deceased did not answer. Similarly, after
14th question, the deceased became unconscious and therefore, remaining
questions were left blank. Therefore, there is no declaration about the
truthfulness of dying declaration from deceased Sangita as she became
unconscious from 10.00 a.m.
21. In support of this submissions, the learned counsel appearing for
the appellants/accused placed reliance on the following case laws:
(1) Shivaji s/o Tukaram Patdukhe v. State of Maharashtra,2004 1
MR (Cri) 3220, wherein, the coordinate Bench of this Court at the
Principal Seat observed that "the dying declaration at Exh.24, according to us, can
not be relied upon as the statement was never read over to deceased Durgabai and
there is no endorsement to that effect. When the declaration was not read over to
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Durgabai and she had not admitted the contents thereof to be correct, according to
us, the dying declaration can not be made foundation for sustaining the
conviction."
(2) Shaikh Bakshu and others v. State of Maharashtra, reported in (2007) 11 SCC
269, wherein the Hon'ble Apex Court observed that Nayab Tahsildar has not
produced letter because it may be misplaced but nothing was prevented the
prosecution to produce copy of letter which was purported returned to the Nayab
Tahsildar and condition of deceased was very poor as stated by the medical officer
and the condition was deteriorated since 6.10 p.m. The learned trial court,
however held the dying declaration to be credible because medical was present
when the dying declaration was recorded. There was no mention about the dying
was read over and explained to the deceased. Therefore, the dying declaration was
unacceptable.
(3) Milind Ramchandra Gharat Vs. State of Maharashtra Laws (Bom)
2014-12-18 decided on 01.12.2014 by coordinate Bench of this Court at the
Principal Seat, wherein PW-4 father of deceased had deposed about making oral
dying declaration to him that she had been set ablaze by the appellant. According
to him, Pratibha had informed him that the appellant had come to her house and
had dragged her to the bedroom and thereafter had poured kerosene on her and
had set her ablaze. However, during cross examination, contradictions are
brought. Therefore, by virtue of said contradictions, it has been held that oral dying
declaration cannot be made basis for conviction as the omissions are touching the
incident in question.
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(4) Abdul Riyaz Abdul Bashir vs. State of Maharashtra 2012 ALL MR
(Cri) 2188 wherein, it has been observed that statement as recorded was not read
over to the deceased and there is no endorsement to that effect. Under such
circumstances, the said dying declaration cannot be foundation for sustaining
conviction merely because it is mentioned in printed proforma that statement is
read over to declarant and that the declarant had admitted the contents to have
been correctly recorded, no reliance could be placed on the dying declaration.
(5) Gajanan Hanumant Jiddewar, 2016 All MR (Criminal)4919, wherein,
three dying declarations were recorded but there were no endorsement about the
fitness of the deceased prior to and after recording of the declaration. So also, no
explanation was offered as to the thumb impression of the deceased was obtained
over when both palms of the deceased were burn and her body was also
bandaged. In the said case, the first dying declaration was recorded without any
endorsement about her fitness prior and after recording of dying declaration.
Second dying declaration though endorsed with fitness of deceased to make such
statement, it is silent about who recorded the said declaration. The third dying
declaration was recorded by complying all requirements under section 32 and
thereafter thumb impression of the deceased was taken on declaration, however, no
explanation was offered as to presence of clear ridges and curves over the thumb
impression when both palms of deceased were burnt and her body was
bandaged. Under the circumstances all these three dying declarations are not in
accordance with law and hence, not reliable.
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22. Per contra, learned APP supported the findings recorded by the
learned trial Court and canvassed that marriage of deceased Sangita was
solemnized with accused No. 1 on 03.06.2001 and after marriage Sangita
cohabited with Accused No.1 at Tuljapur, however, soon after marriage she
was subjected to cruelty by the accused on account of their demand of dowry
of Rs.20,000/- for construction of house. The said demand could not be
fulfilled by the parents of deceased Sangita because they had incurred huge
expenses in marriage of their daughter. However, on 12.08.2001, within a
period of 2 months and 9 days from the marriage, Accused Nos. 2 and 3
poured kerosene on the person of deceased Sangita, and Accused No.1 - her
husband set her on fire by lighting a matchstick. Evidence of PW-3 shows
that the patient was conscious at about 9.50 a.m. and she become semi
conscious at about 10.00 a.m., therefore, she put endorsement at Exh. 26.
PW-2 recorded dying declaration Exh. 26 after obtaining necessary
endorsement from Medical Officer PW-3 Dr. Sunita Garad who certified that
patient Sangita was conscious and under fit state of mind to give her
statement. Accordingly, PW-2 API Shri Pratap Kulkarni recorded statement
of deceased Sangita and while recording such statement, PW-3 Medical
Officer was present. The said statement was read over to the deceased
patient and verified about the correctness of the statement. The prosecution
proved the dying declaration Exh.26. Therefore, the learned trial court
recorded findings that the dying declaration Exh. 26 is trustworthy.
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23. In support the said submissions, the learned APP placed reliance
on the decision of Hon'ble Supreme Court in the case of Jayshree Anant
Khandekar Vs. State of Maharashtra, (2009) 11 SCC 647 , wherein, multiple
dying declarations were placed on record and the appellant in the said case
alleged to have poured kerosene on the person of deceased and set her on
fire, due to which the deceased had sustained 100% burn injury and
succumbed to the said injures after 15 days and the said dying declarations
were found in consistence and the declarant was conscious to make
statements. Under the circumstance, the Hon'ble Supreme Court held that
the dying declaration has been corroborated with multiple dying declarations
given by the victim.
24. Learned APP further relied on the case of Bhajju @ Karan Sing
Vs. State of Madhya Pradesh, (2012) 4 SCC 327 , wherein the Hon'ble Apex
Court laid down guidelines governing admissibility of dying declaration and
held that dying declaration is admissible in evidence and the admissibility is
founded on the principle of necessity. A dying declaration, if found reliable,
can form the basis of a conviction. A court of facts is not excluded from
acting upon an uncorroborated dying declaration for finding conviction. The
dying declaration, as a piece of evidence, stands on the same footing as any
other piece of evidence. It has to be judged and appreciated in light of the
surrounding circumstances and its weight determined by reference to the
principle governing the weighing of evidence. If in a given case a particular
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dying declaration suffers from any infirmity, either of its own or as disclosed
by the other evidence adduced in the case or the circumstances coming to its
notice, the court may, as a rule of prudence, look for corroboration and if the
infirmities are such as would render a dying declaration so infirm that it
pricks the conscience of the court, the same may be refused to be accepted as
forming basis of the conviction. It is further held that another
consideration that may weigh with the court, of course with reference to the
facts of a given case, is whether the dying declaration has been able to bring
a confidence thereupon or not, is it trustworthy or is merely an attempt to
cover up the laches of investigation. It must allure the satisfaction of the
court that reliance ought to be placed thereon rather than distrust.
25. The learned APP further relied on the case of Muthu Kutty v.
State,(2005) 9 SCC 113 where the Hon'ble Supreme Court, in para 15, held
as under:
"15. Though a dying declaration is entitled to great weight, it is
worthwhile to note that the accused has no power of cross-examination.
Such a power is essential for eliciting the truth as an obligation of oath
could be. This is the reason the court also insists that the dying
declaration should be of such a nature as to inspire full confidence of the
court in its correctness. The court has to be on guard that the statement
of the deceased was not as a result of either tutoring, or prompting or a
product of imagination. The court must be further satisfied that the
deceased was in a fit state of mind after a clear opportunity to observe
and identify the assailant. Once the court is satisfied that the declaration
was true and voluntary, undoubtedly, it can base its conviction without
any further corroboration. It cannot be laid down as an absolute rule of
law that the dying declaration cannot form the sole basis of conviction
unless it is corroborated. The rule requiring corroboration is merely a
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rule of prudence. This Court has laid down in several judgments the
principles governing dying declaration, which could be summed up as
under as indicated in Paniben v. State of Gujarat (1992) 2 SCC 474.
'(i) There is neither rule of law nor of prudence that dying declaration
cannot be acted upon without corroboration. (See Munnu Raja v.
State of M.P.)
(ii) If the court is satisfied that the dying declaration is true and voluntary
it can basic conviction on it, without corroboration. (See State of U.P.
v. Ram Sagar Yadav10 and Ramawati Devi v. State of Bihar.)
(iii) The court has to scrutinise the dying declaration carefully and must
ensure that the declaration is not the result of tutoring, prompting or
imagination. The deceased had an opportunity to observe and
identify the assailants and was in a fit state to make the declaration.
(See K. Ramachandra Reddy v. Public Prosecutor )
(iv) Where dying declaration is suspicious, it should not be acted upon
without corroborative evidence. (See Rasheed Beg v. State of M.P.)
(v) Where the deceased was unconscious and could never make any dying
declaration the evidence with regard to it is to be rejected. (See Kake
Singh v. State of M.P.)
(vi) A dying declaration which suffers from infirmity cannot form the
basis of conviction. (See Ram Manorath v. State of U.P.)
(vii) Merely because a dying declaration does not contain the details as to
the occurrence, it is not to be rejected. (See State of Maharashtra v.
Krishnamurti Laxmipati Naidu.)
(viii) Equally, merely because it is a brief statement, it is not to be
discarded. On the contrary, the shortness of the statement itself
guarantees truth. (See Surajdeo Ojha v. State of Bihar.)
(ix) Normally the court in order to satisfy whether deceased was in a fit
mental condition to make the dying declaration look up to the
medical opinion. But where the eyewitness said that the deceased
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was in a fit and conscious state to make the dying declaration, the
medical opinion cannot prevail. (See Nanhau Ram v. State of M.P.)
(x) Where the prosecution version differs from the version as given in the
dying declaration, the said declaration cannot be acted upon. (See
State of U.P. v. Madan Mohan19.)
(xi) Where there are more than one statement in the nature of dying
declaration, one first in point of time must be preferred. Of course, if
the plurality of dying declaration could be held to be trustworthy and
reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v.
State of Maharashtra)"
26. Having regard to submissions canvassed on behalf of both the
sides, we have gone through the entire record. As per evidence of PW4
Vatchala and PW-5 Das, parents of deceased, as well as marriage invitation
card Exh. 55, it proves that marriage of Sangita and accused No.1 Dhanraj
was solemnized on 03.06.2001, prior to 2 months and 9 days of incident of
Sangita's death i.e. 12.08.2001. Accused Nos. 2 and 3, are parents of accused
no. 1 Dhanraj and said fact is admitted by them while recording their
statements under Section 313 of the Cr.P.C. Insofar as the allegations
against the accused in respect of cruelty and ill-treatment to Sangita, the
prosecution relied on the evidence of star witnesses i.e. PW-4, PW-5 as well
as PW1, PW2, PW3, PW10, PW11 and PW-12.
27. PW4- Vatchala, mother of deceased, deposed at Exh.30 that after
marriage, her daughter Sangita cohabited with Accused No.1 at Tuljapur and
after four days of marriage, Sangita visited her house at Vairag and halted
for a night and on the next day, Sangita and accused No.1 left for Tuljapur
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on motorcycle. But, while proceeding towards Tuljapur on motorcycle,
accused No.1 caused to fall Sangita from motorcycle and went ahead.
Thereafter, one truck came from back side and the truck driver told accused
Dhanraj that a lady fell down on road from motorcycle and thereafter the
accused returned back and took Sangita on his motorcycle to the Hospital at
Tuljapur and then to Hospital at Osmanabad. Thereafter PW-4 took Sangita
to the Hospital of Dr. Gurgute at Barshi, wherein Sangita was admitted for
15 days. Thereafter, a phone call was received from accused No.1 Dhanraj
and upon which Sangita was brought at her matrimonial house. She
further deposed that she had sent her son Suraj to bring Sangita at her house
for Panchami Festival but accused did not send Sangita with Suraj, hence,
she went to the house of accused and on next day she brought Sangita to her
house at village Vairag i.e. parental house. After Panchmi festival was over, P.
W. 4 took Sangita at the house of accused. Thereafter, when her husband
(PW5 Das Thombre) visited the house of accused to bring Sangita at their
house for Rakshabandan Festival and at that time, the accused had sent
Sangita by saying her to bring Rs.20,000/- for house construction. She
further deposed that Sangita's in-laws asked her whether she had brought
₹20,000 for the construction of their house, and told Sangita to enter the
house only if she had brought the money; otherwise, she should go back with
her parent. Thereafter, PW4 and her husband PW-5 told Sangita's in-laws
that they have given Sangita to them in marriage and from that day she is
not their daughter and accused will have to take care of their daughter. They
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will not take back their daughter and thereafter they returned to their
village by leaving Sangita at her matrimonial house. Then, after four days, a
phone message was received about burning of Sangita.
28. The defence tried to bring on record that, the P. W. 5 Das Maruti
Thombare is having two wives and on said account there were always
quarrels between the P. W. 4 and P. W. 5, due to which Sangita was not ready
and willing to go to her parental house. So also, accused Dhanraj No. 1 is
only son of his parents and accused no.1 having 10-11 acres of land. The
father of accused Dhanraj was serving in Municipality and accordingly
marriage of Sangita was solemnized with accused No.1 as he was the only
child of his parents and having house consisting 2/3 rooms. But all these
suggestions were denied by the P. W. 4
29. Evidence of P. W. 4 Smt. Vatchala Das Thombare and PW5-Das
Thombre, parents of deceased appears to be in corroboration about
solemnization of marriage between accused No.1 Dhanraj and deceased
Sangita on 03.06.2001 as well as incident of falling of Sangita on Road
from motorcycle while returning to Tuljapur from village Vairag. Evidence of
both these witnesses also corroborates about admission of Sangita in the
Hospital at Tuljapur and subsequent medical treatment of Dr. Gurgute at
Barshi. As per evidence of PW-5 ,when his daughter Sangita visited his
house, she had told him and his wife (PW-4) about raising of demand of
₹20,000/- by the Accused No. 1 for the construction of the house and on
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that count she was being subjected to ill-treatment. So also, after the P. W.
5 shown disinclination to pay said amount due to incurring marriage
expenses recently, soon thereafter within 3/4 days, he received phone
message that Sangita was killed by setting on fire. Though the defence
conducted lengthy cross examination of P. W. 4 & 5 but nothing has been
solicited in cross examination that accused persons never raised demand of
Rs.20,000/-.
30. After going through the evidence of PW3 Dr. Sunita Garad, Medical
Officer, Civil Hospital, Osmanabad it appears that, on 12.08.2001, she was
discharging duty as casualty Medical Officer from 08.00 a.m. to 2.00 p.m.
and during her duty period, patient Sangita was admitted in the Civil
Hospital on 12.08.2011 at about 9.15 a.m., and she medically examined the
patient and taken history. Thereafter, she issued letter Exh. 25 to the Police
and informed about admission of patient with burn injuries. Thereafter, PW2
visited the burn. Thereafter she re-examined patient Sangita on his request
and at that time the patient was conscious and under fit state of mind to give
her statement at about 9.50 a.m. Thereafter P. W. 2 ASI Shri Pratap Kulkarni
recorded statement of Sangita. While recording statement of Sangita the P. W.
3 Medical Officer was present. As per evidence of PW-3 the patient Sangita
became semi conscious at about 10.00 a.m., hence, she made endorsement.
However, at about 10.15 a.m., patient Sangita became unconscious and
when she re-examined the patient at 10.30 a.m., the patient was dead.
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Therefore, she informed the police about the death by issuing letter Exh. 29.
No doubt, in cross examination, it is brought on record that, PW3 has not
made endorsement on the top of statement Exh. 26 about consciousness of
patient Sangita but the PW-3 specifically stated that when she medically
examined the patient Sangita, she found that the patient was conscious and
under fit state of mind to give her statement. In cross examination, the
defence put the following question and the P. W. 3 Medical Officer answered
as under:
Q. Generally, in burn cases, the patient is always in conscious condition
till last moment ?
Ans: It depends upon each and every patient, patient may die suddenly or
she may go in semi-conscious stage.
31. It is matter of record that, PW-3 has not denied about non
issuance of separate certificate about mentally fit to give statement by the
patient and there is no attestation made by the P. W. 2 ASI or the P. W. 3 in
respect of thumb impression of patient on statement Exh. 26 but P. W. 3
Medical officer denied that thumb impression of patient on Exh. 26 was
obtained when the patient was in unconscious condition. Therefore, it prima
facie proves that, while recording Statement Exh. 26 at about at about 9.50
a.m. the patient Sangita was conscious till 10.am., but at about 10.15 am,
she became semi conscious. Later on at about 10.30 a.m., the patient Sangita
died. Therefore, it proves that, when the P. W.2 started recording Statement
Exh. 26, the patient Sangita was conscious and her dying declaration was
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recorded as per her say. Therefore, there are no infirmities and said
statement appears to be truthful, trustworthy and reliable.
32. In case of Purshottam Chopra & Anr. Vs. State (Govt. of NCT,
Delhi), 2020 AIR (SC) 346 the Hon'ble Supreme Court laid down some
principles relating to recording of dying declaration and its admissibility and
reliability could be usefully summed up as under:
(i) A dying declaration could be the sole basis of conviction even without
corroboration, if it inspires confidence of the court.
(ii) The court should be satisfied that the declarant was in a fit state of
mind at the time of making the statement; and that it was a voluntary
statement, which was not the result of tutoring, prompting or
imagination.(iii) Where a dying declaration is suspicious or is
suffering from any infirmity such as want of fit state of mind of the
declarant or of like nature, it should not be acted upon without
corroborative evidence.
(iv) When the eyewitnesses 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.
(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.
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(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.
33. The accused have not denied about seizure Panchanama of
Clothes of deceased, Stove, some quantity of kerosene as well as FSL report
and Spot Panchanama. It is a matter of record that, during course of
investigation, the I.O. P.W. 16 P. I. Shri D. S. Birajdar recorded statements of
P. W. 6 Anna Madhavrao Jadhav, P. W. 7 Shivanand Jyotiba Dalvi, P. W. 8
Shaikh Mainoddin Bashir and P. W. 9 Dnyandeo Kisan Sonwane, the Auto
Rikshaw Driver, in whose Rikshaw deceased was taken to Hospital, but they
did not support case of the prosecution. However, the P. W. 16 P. I. Shri D. S.
Birajdar deposed that, he has recorded statements of P. W. 6 to 9 as per their
say and while recording statements, they stated portion marked Exh. 56 to
65. It is needless to mention here that, the P. W. 6 to 9 are residing near the
house of accused, therefore, there is every possibility that they are won over
by the accused.
34. It is further submitted that, in order to prove the defence, the
accused examined DW1 Shri Dilip Ganpatrao Deshmukh at Exh.1 Chief
Officer of Municipality at Exh.76, who deposed that accused No. 3 Narhari
was working in Municipality in sanitary section and on 11.08.2001 he was
present on his duty as per muster roll. On 11.8.2001, accused No.3 was
entrusted with the duty with Aradwadi School as watchman from 7.00 p.m.
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to 7.00 a.m. of next day and proved original muster roll at Exh. 78.
However, in cross examination DW1 admitted that, he has no direct control
over each and every staff member, but head of the concerned section having
control on staff members working in each section of the Municipality. DW1
admitted that accused No.3 Narhari is a sanitary labour but as per record,
he is unable to say whether there was any order in writing to entrust the
duty as watchman at Aradwadi school. So also, he cannot state exactly
whether accused no.3 Narhari was actually present on his duty till 7.00 a.m
of 12.08.2002.
35. On perusal of evidence of prosecution witnesses, it prima facie
proves that, the marriage between deceased Sangita and Accused No.1
Dhanraj was solemnized on 03.06.2001 and soon thereafter, deceased
cohabited with the accused no.1 alongwith accused Nos. 2 and 3. It further
proves that, when the PW5 Das Thombre visited the house of accused to
bring Sangita on eve of Rakshabandan Festival and at that time, the accused
sent Sangita by saying her to bring Rs.20,000/- for construction of house
and when she returned at her matrimonial house, at that time her in-laws
asked her whether she brought Rs.20,000/- or not and told Sangita to enter
in the house only if she brought money else she can go back with her parent.
Thereafter, within 3/4 days, the incident of burning occurred. Therefore, it
proves that, soon before the incident, the deceased Sangita was subjected to
cruelty. So also, on 12.08.2001, soon after lapse of two months and 9 days
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of marriage, Accused Nos. 2 and 3 poured kerosene on her person and
accused No.1 set her on fire by lighting matchstick due to non fulfillment of
illegal demand of dowry.
36. During the course of investigation, the P. W. 16 I.O. Shri D. S.
Birajdar had visited the spot of incident and drawn spot Panchanama-
Seizure panchanama Exh. 40 and seized Stove containing kerosene Art. 1,
White colour plastic can containing two liters kerosene Article 2, pieces of
burn clothes (petticoat) attached with skin Article-3, Matchbox Article 4. As
per FSL report Exh. 85, results of detection of kerosene residues on partly
brunt blue Coloured cloth pieces wrapped in paper found positive. Therefore,
all these facts and circumstances discussed above coupled with dying
declaration Exh. 26 of deceased Sangita and evidence of PW-4 and PW-5
prove that, the deceased Sangita was subjected to cruelty and ill-treated at
the hand of Appellants/accused on account nonfulfillment of their demand
of Rs.20,000/- and on said account the Appellants/accused, in collusion with
each other, committed murder of Sangita by pouring kerosene on her person
and setting her on fire.
37. On 26.03.2023, the learned 2nd Ad- Additional Sessions Judge,
Osmanabad passed the impugned judgment and order after appreciating
the evidence of prosecution witnesses, particularly dying declaration in the
light of the surrounding circumstances and held the accused guilty and
convicted them for the offences punishable under sections 498-A, 302 read
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with section 34 of the Indian Penal Code and sentenced to suffer rigorous
imprisonment for three years and to pay fine of Rs.500/- each for the
offence punishable under Section 498A and imprisonment for life with fine
of Rs.1000/- each for the offence punishable under Section 302 of Indian
Penal Code. Therefore, the findings recorded by the learned trial Court are
based on oral as well as documentary evidence, which do not appear illegal,
arbitrary and no grounds are set out to interfere with the said findings.
38. In view of the above, the criminal appeal stands dismissed.
39. Bail bonds of the appellants stand cancelled. The Appellants shall
surrender before the trial court within period of four (4) weeks from today to
undergo remaining sentence as ordered by the trial court.
40. Record and proceedings be remitted back to the trial Court as per
rules.
( Y. G. KHOBRAGADE, J. ) ( SANDIPKUMAR C. MORE J. )
JPChavan
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