Bombay High Court
Smt. Vimalbai Vitthal Dhavne (In Jail) vs The State Of Mah. Thr. P.S.O., P.S. ... on 22 September, 2025
2025:BHC-NAG:9586-DB
1 APEAL.192-2010.JUDGMENT.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 192 OF 2010
Smt. Vimalbai W/o Vitthal Dhavne
Aged about 60 Yrs., Occ. Nil,
R/o. Deulgaon, Sakarsha,
Tah. Mehkar, Dist. Buldana. APPELLANT
Versus
The State of Maharashtra,
Thr. P.S.O., P.S. Mehkar, Dist. Buldana. RESPONDENT
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Mr. R.M. Daga, Advocate a/w Ms. Titiksha Chhajad, Advocate
for the Appellant.
Mr. N.H. Joshi, APP for the Respondent/State.
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CORAM : URMILA JOSHI PHALKE AND
NANDESH S. DESHPANDE, JJ.
RESERVED ON : 08th SEPTEMBER, 2025.
PRONOUNCED ON : 22nd SEPTEMBER 2025.
ORAL JUDGMENT :- (PER : URMILA JOSHI PHALKE, J.)
1. This Appeal is directed against the judgment and
order of sentence passed in Sessions Case No.89/2008 dated
2 APEAL.192-2010.JUDGMENT.odt
08.03.2010 by Additional Sessions Judge, Buldhana convicting
the accused Vimalbai Vitthal Dhavne of the offence punishable
under Section 302 of the Indian Penal Code and sentenced to
imprisonment to life and to pay fine Rs.5,000/- in default to
suffer simple imprisonment for three months.
2. Brief facts of the prosecution case emerges from the
Police papers and recorded evidence are as under:
2(i). Deceased Mangala daughter of Smt.Anusaya
Jagannath Thorat/Informant got married prior to 3 months of
her death. After marriage, she resumed cohabitation with the
husband Anil, present accused Vimalbai who is her mother-in-
law, sister-in-law/Manisha and other family members at
Deulgaon Sakarsha. On 03.06.2008, she came to Risod at the
house of her mother and disclosed that her mother-in-law and
sister-in-law used to harass her by quarrelling with her on petty
reasons. It was further disclosed that her husband Anil beat her
by demanding Rs.30,000/- from her parents house. She was not
ready to resume cohabitation, however she went back on
10.06.2008. On 11.06.2008, the Informant has received phone
call at about 01.00 p.m., disclosing that her daughter sustained
3 APEAL.192-2010.JUDGMENT.odt
burn injuries and admitted in Hospital at Akola. Therefore, they
rushed to Akola. The statement of injured Mangala was
recorded by the Executive Magistrate. On the basis of the oral
report by Anusaya Crime No.46/2008 came to be registered at
Janefal Police Station.
2(ii). After registration of the crime, the Investigating
Officer visited the alleged spot of incident and drawn spot
panchnama. He has deputed PW-4/Devanand Bagade for
recording the statement. The statement of deceased was also
recorded by PW-8-Naib Tahsildar/Sanjay Markal. During
treatment, the deceased succumbed to death. On 15.06.2008,
her Post Mortem notes were collected. The cause of death was
due to 100% burn injuries. The incriminating articles seized at
the time of spot panchnama. Clothes of the deceased were
forwarded to CA. After completion of the investigation, the
charge-sheet was filed against the accused and other
co-accused.
2(iii). As the offence registered under Section 302 of the
IPC, which is exclusively triable by the Court of Sessions,
learned Magistrate committed the case to the Court of Sessions.
4 APEAL.192-2010.JUDGMENT.odt
The charge was framed against the accused vide Exh.46A. The
contents of the charge were read over to the accused. She
pleaded not guilty and claimed to be tried. In support of the
prosecution case, the prosecution has examined in all 8
witnesses, as follows:
(i) PW-1 Devidas Yashwant Exh.67 Panch on Spot
Wankhede- Panchnama.
(ii) PW-2 Anusaya Jagannath Exh.70 Mother of the
Thorat deceased and the
Informant.
(iii) PW-3 Datta madhukar Sarode Exh.71 ....
(iv) PW-4 Devanand Somanand Exh.75 PSI who recorded
Bagade the dying declaration
(v) PW-5 Balchandra Baburao Exh.78 A.C.P.
Salunke
(vi) PW-6 Sudhakar Kaluji Ingle Exh.81 Investigating Officer.
(vii) PW-7 Dr. Pallavi Rajendra Exh.86 Medical Officer.
Dhawale
(viii) PW-8 Sanjay Shriram Markal Exh.90 Executive Magistrate
who recorded dying
declaration.
5 APEAL.192-2010.JUDGMENT.odt
2(iv). Besides the oral evidence, the prosecution placed
reliance on inquest panchnama-Exh.55, requisition to Circle
Officer to draw Map-Exh.59, Map-Exh.60, spot panchnama-
Exh.68, requisitions to Medical Officer-Exhs.76, 77, 88 & 88-A,
Extract of Station Diary-Exh.79, requisition to CA-Exh.84, CA
Report-Exh.85, Post Morten Report-Exh.89, requisition to
Tahsildar-Exh.91, requisition to Medical Officer-Exh.92.
2(v). All incriminating evidence is put to the accused in
order to obtain his explanation. The defence of the accused is
that the death of the deceased is due to burn injuries
accidentally. In support of the defence, the accused examined
DW-1/Vimalbai Bhika Alhat-Exh.100.
2(vi). After appreciating the evidence on record and on
going through the entire evidence, the learned Additional
Sessions Judge, Buldana held the present accused guilty and
convicted as aforestated.
2(vii). Being aggrieved and dissatisfied with the same, the
present Appeal is preferred by the Appellant/accused on the
ground that on the basis of inconsistent dying declarations, the
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learned Sessions Judge, Buldana convicted the accused. The
mental and physical condition of the deceased to give statement
or not is also not established by the prosecution. The mother of
the deceased has not supported the prosecution case. Thus, on
the basis of inconsistent evidence, the accused is convicted.
3. Heard Mr. Daga, learned Counsel for the Appellant/
accused, who submitted that the entire case of the prosecution
relied upon two dying declarations which are inconsistent in all
material particulars. Prior to recording of dying declarations,
oral dying declaration is to the extent of accidental injuries
caused by her due to falling of kerosene can and catching fire.
The first dying declaration recorded by PW-4/Devanand Bagade
which shows that, the accused poured kerosene on her person
and her husband set her on fire and kerosene can was brought
by her sister-in-law, whereas in second dying declaration
recorded by PW-8/Naib Tahsildar, she alleges that it was the
present accused who poured kerosene on her person and set her
ablaze by igniting the match stick.
4. He further submitted that, the conviction can
undisputedly be based on dying declarations but before it can
7 APEAL.192-2010.JUDGMENT.odt
be acted upon the same must be held to have rendered
voluntarily. Consistency in the dying declaration is the relevant
factor placing full reliance thereupon. In the present case, the
deceased herself had taken contradictory and inconsistent stand
in two dying declarations.
5. He also submitted that, the law as to the dying
declaration is well settled. He also pointed out from the
evidence that the dying declarations bears the thumb
impression of the deceased. The fact of having ridges of thumb
after she sustained 100% burn injuries appear to be doubtful.
Moreover, whether she was in a position to give statement by
ascertaining her physical as well as mental condition, evidence
to that effect is not adduced by the prosecution. He further
submitted that, the requirement of the medical endorsement
though was not there, but the persons who are recording the
dying declarations must satisfy themselves that she is in a fit
condition to give statement. In view of that, the accused is
entitled for benefit of doubt.
8 APEAL.192-2010.JUDGMENT.odt
6. In support of his contentions, he placed reliance on
following judgments cited below:
1. Samadhan Dhudhaka Koli Vs. State of Maharashtra, 2009
ALL MR (Cri) 229 (S.C.).
2. The State of Maharashtra Vs. Soma Laxman Nikam, 2015
ALL MR (Cri) 3032.
3. Datta s/o Tukaram Malwad Vs. The State of Maharashtra,
2014 ALL MR (Cri.) 3967.
4. Uttam Vs. State of Maharashtra (2022) 8 SCC 576.
7. Per contra, learned APP submitted that for proving
dying declaration recorded by a person, it is not essential
requirement of law that the recorder should repeat while
deposing before the Court, contents of declaration in the words
spoken by the deceased as to the cause of death of the
transaction which resulted into death. In other words, the
recorder of dying declaration need not depose before the Court
in the words spoken by the deceased about the act of the
accused which resulted into death.
8. He submitted that, as far as both dying declarations
are concerned, consistent as to the act of the accused is
9 APEAL.192-2010.JUDGMENT.odt
concerned, the death of the deceased is caused within 7 years of
marriage in matrimonial house. Though the mother of the
deceased turned hostile, her evidence shows that earlier day of
the incident i.e., on 10.06.2008, deceased returned to the
matrimonial home and on 11.06.2008 the alleged incident has
occurred. The disclosure by the deceased to her mother as to
the ill-treatment and the dying declarations recorded by the
PW-8/Executive Magistrate as well as PW-4/Devanand Bagade
are consistent as to the cause of death and the role of the
accused in setting her on fire. He submitted that, the certificate
by Doctor that makes it fit to make statement not essential
requirement in every case. No such format or procedure is
provided by law. It is not essential that, in case of 100% burn,
the presence of ridges, curves and thumb impression taken on
declaration makes the declaration doubtful. It is always depends
on the facts as regard whether such skin of the thumb placed
upon the dying declaration was also burnt.
9. Here in the present case, the satisfaction by PW-4
and PW-7 to the extent that, the deceased was in a fit condition
to make a statement, sufficiently shows that the deceased was in
10 APEAL.192-2010.JUDGMENT.odt
a fit condition to give statement and the statement is consistent,
therefore the prosecution has proved its case beyond reasonable
doubt. The death of the deceased is occurred in matrimonial
home due to the burn injuries. In view of that, the Appeal being
devoid of merits and liable to be dismissed.
10. After hearing both the sides and after giving
thoughtful considerations to the submissions made by both the
parties, following points arise for our consideration:
i. Whether the prosecution proves that the death of the
deceased is homicidal one ? And
ii. Whether the accused has poured the kerosene on the
person of the deceased and set her ablaze ?
11. To substantiate the contention that the deceased has
sustained the burn injuries and succumbed to death due to the
said burn injuries, the prosecution mainly placed reliance on the
medical evidence i.e. the evidence of PW-7/Dr. Pallavi Rajendra
Dhawale and Post Mortem Notes is at Exh. 89. The evidence of
PW-7 shows that, on examination of the dead body of the
deceased who succumbed to the death on 15.06.2008, she
11 APEAL.192-2010.JUDGMENT.odt
found 100% burn injuries on her person. The nature of the burn
injuries were superficial to deep. All burn injuries were
antemortem in nature. The cause of the death is due to burns
100% with shock. Accordingly she prepared Post Mortem
Notes/Exh. 89.
12. The cross-examination of PW-7 shows that, the brain
of burnt Mangala was not impaired due to the burn injuries.
Mangala was talking when she was admitted in the hospital. On
perusal of the Post Mortem Notes it reveals that she has
sustained 100% burns which is divided by Rule 9 i.e. burns on
head, neck and face 9%, upper limbs 18%, lower limbs
18% +18%, trunk 18%, back 18% and genital area 1%. Thus,
as far as the death of the deceased due to the burn injuries is
concerned, is not disputed. The inquest panchnama which is
also on record at Exh. 55 also shows that the deceased has
sustained the extensive burn injuries.
13. It is not in disputed that, the death of the deceased
is occurred in her matrimonial home on 11.06.2008 as she
sustained the burn injuries. As per the prosecution case, it was
the present accused and the other co-accused who in
12 APEAL.192-2010.JUDGMENT.odt
furtherance of their common intention poured the kerosene on
her and set her ablaze. However, the other co-accused Anil who
is the husband and accused No.3/Suresh, accused No.
4/Chandrakala, accused No. 5/Manisha, accused No. 6/Satish
and Accused No. 7/Sunil who are the nearest relatives of
husband are acquitted. The present accused is the mother-in-
law who convicted of the offence punishable under Section 302
of IPC. To substantiate the allegation, the prosecution mainly
placed reliance on the evidence of PW-2/Anusaya who is the
mother of the deceased. But she has not supported the
prosecution case and left the loyalty towards the prosecution
case.
14. Besides her evidence, the prosecution placed
reliance on the dying declarations. During her admission in the
hospital, two dying declarations were recorded, one by
PW-4/Devanand and another by PW-8/Sanjay Markal Naib
Tahsildar.
15. The evidence of PW-4 shows that he was working as
PSI in City Kotwali Police Station on 12.06.2008. The in-charge
of Police Station directed him to visit the Government Hospital,
13 APEAL.192-2010.JUDGMENT.odt
Akola for recording the statement of injured, therefore he
visited the burn ward in the Hospital. He requested the Medical
Officer on duty in writing to ascertain whether the injured is in
a condition to give statement or not. The Medical Officer
examined injured Mangala and endorsed that she is in a fit
condition to give statement. The requisition letter is at
Exh. 76. Thereafter, he introduced himself to the patient and
also disclosed to her that he came to record her statement.
Accordingly, the injured had stated that on 11.06.2008 she
asked her husband to take her to the parental house but he
thrown away her clothes back. Thereafter, when she was
sleeping, her mother-in-law Vimal i.e. the present accused
poured kerosene on her person and her husband Anil set her
ablaze by match stick. The kerosene can was brought by her
sister-in-law Manisha and handed over to her mother-in-law
and her bother-in-law Sunil closed the door. He recorded the
statement as per her narration. Again Medical Officer examined
her and gave endorsement. He read over the contents of the
statement to the injured and obtained her thumb impression.
The said statement is at Exh.77.
14 APEAL.192-2010.JUDGMENT.odt
16. The cross-examination of this witness discloses that
the relatives of the injured were near to her, when this witness
visited the burn ward. She has sustained the burn injuries to the
extent of 99%. This witness denied the suggestion that her
mother Anusaya and one Shankar were present near her when
her statement was recorded.
17. Another dying declaration is recorded by
PW-8/Sanjay Markal who was serving as an Executive
Magistrate as well as Naib Tahsildar. As per her evidence, on
11.06.2008 at about 04.00 p.m., the Constable from City
Kotwali Police Statition, Akola, approached to him at about
04.00 p.m., and handed over him requisition to record the
statement of injured Mangala which is at Exh. 91. Thereafter, he
visited the burn ward of General Hospital, Akola, wherein PW-
7/Dr. Pallavi Dhawale was on duty. He requested her to examine
the patient and ascertain whether she is conscious or not for
giving the statement. The said requisition is at Exh.92.
Thereafter, the Medical Officer examined her and endorsed on
Exh.87 that burnt Mangala is conscious and fit for dying
declaration. Thereafter, he recorded the dying declaration, on
15 APEAL.192-2010.JUDGMENT.odt
satisfying himself that injured is in a condition to give the
statement. He made enquiry with her which was reproduced
into writing. The said dying declaration is at Exh. 93. He has
obtained the thumb impression on her dying declaration. He
denied that, the relatives of the patient were present when he
approached to the injured for recording her statement. Rest of
the cross-examination is in the denial form. He admitted that,
there is no reference on Exh. 93 that he introduced himself and
also informed that he came for recording the statement.
18. PW-7/Dr. Pallavi Dhawale in whose presence both
the dying declarations are recorded. As per her evidence, on
11.06.2008 at about 04.00 p.m., the Executive Magistrate
approached to her. On his request, she examined the injured
and gave endorsement that she is in a fit condition to give a
statement. Accordingly, she examined and gave endorsement
which is at Exh. 87. The Executive Magistrate recorded the
statement in her presence. On completion of the statement, she
again examined the patient and found her in a fit condition. The
subsequent endorsement is at Exh. 87-A. Her further evidence
shows that, on 12.06.2008 PW-5/Bhalchandra approached to
16 APEAL.192-2010.JUDGMENT.odt
her for recording the statement. On his request, she examined
the patient and gave endorsement that she is in a fit condition
to give a statement. In her presence the statement was recorded.
Her endorsements on the said statements are at Exhs. 88 and
88-A. Though she is cross-examined at length, as far as her
mental and physical condition is concerned, her evidence is not
shattered during the cross-examination.
19. Besides the evidence of these two witnesses, the
prosecution has adduced the evidence of PW-1/Devidas
Wankhede who acted as a Panch on spot panchnama. As per his
evidence, in his presence from the spot one kerosene can, wet
quilts, hair pin, one pen, etc., were seized from the place of
incident. The spot panchanama is at Exh. 68. He has also
identified the articles which were seized from the spot.
20. During his cross-examination, it came on record that
this witness is neighbour of the co-accused Anil. There are other
adjoining houses near the incident. He further admits, that the
accused Satish climbed on the roof of the house in which the
incident took place. Accused Satish entered in the second room
and by removing the tin of the roof he entered inside and open
17 APEAL.192-2010.JUDGMENT.odt
the door. It further came in his evidence that, the accused Satish
and all other villagers extinguished the fire when they saw
Mangala caught by fire.
21. PW-2/Anusaya Thorat and PW-3/Datta Sarode have
not supported the prosecution case. As per their evidence
deceased sustained the burn injuries accidentally. They have
also denied the allegation of ill-treatment which was raised
initially.
22. PW-5/Balchandra Salunkhe who was serving as a
API, has deposed that he received a message as to the incident,
therefore taking entry into the station diary he proceeded to the
spot of incident and drawn the spot panchnama. He has also
recorded the report lodged by the PW-2/Anusaya.
PW-6/Sudhakar Ingle who has carried out the part
investigation. As per his evidence he has forwarded the seized
muddemal to F.S.L. Nagpur on 24.06.2008. The requisition
letter is at Exh.85.
23. In support of the defence of the accused that the
deceased has sustained the burn injuries accidentally. Defence
18 APEAL.192-2010.JUDGMENT.odt
witness Vimalbai Bhika Alhat was examined vide Exh.100. As
per her evidence, the deceased has sustained the burn injuries
accidentally. She testified that in her presence PW-2/Anusaya
enquired with the deceased and the deceased disclosed that the
kerosene can kept on wooden plank fell on her person when she
was lightening the hearth, and therefore, she burnt.
24. On the basis of the above oral as well as
documentary evidence, the prosecution has proved its case
beyond reasonable doubt. As far as the nature of the death is
concerned, it is due to the burn injuries. Two stories were put
forward that, the deceased died accidentally, whereas as per the
prosecution, the accused has caused the death of the deceased.
The CA Report at Exh.85 on record shows that, the seized
articles which were forwarded shows detection of kerosene
residues found on partly burnt cloth pieces which are at Exhs. 1
and 2. Thus, the entire case of the prosecution is rested upon
the dying declarations.
25. As per the submissions of the learned Counsel for
the Appellant that two dying declarations are recorded which
are inconsistent on material particulars, and therefore, not to be
19 APEAL.192-2010.JUDGMENT.odt
acted upon. It is submitted that, the evidence of the Medical
Officer and PW-4/Devananad and PW-8/Sanjay Markal,
nowhere discloses that the deceased was in a fit condition to
give statement as they have not recorded their satisfaction. It is
further submitted that, though the Medical Officer gave an
endorsement but she has not stated about the mental state of
mind of the deceased. Therefore, the dying declarations deserve
to be discarded.
26. Per contra, learned APP submitted that, as far as the
role of the present Appellant/accused of setting her ablaze is
consistent, and therefore, the Appeal being devoid of merits
liable to be dismissed.
27. Whether the dying declarations recorded by
PW-4/Devanand and PW-8/Sanjay Markal are inspiring the
confidence or not is to be seen in the light of well settled legal
position. The juristic theory regarding acceptability of a dying
declaration is that such declaration is made in extremity, when
the party is at the point of death and when every hope of this
world is gone, when every motive to falsehood is silenced, and
the man is induced by the most powerful consideration to speak
20 APEAL.192-2010.JUDGMENT.odt
only the truth. Great caution must be exercised in considering
the weight to be given to this type of evidence on account of the
existence of many circumstances which may effect their truth.
28. The Hon'ble Apex Court in the case of Laxman Vs.
State of Maharashtra, 2002 ALL MR (Cri) 2259 SC , held that
normally, therefore, the court in order to satisfy whether the
deceased was in a fit mental condition to make the dying
declaration look up to the medical opinion. But where the eye
witnesses state that the deceased was in a fit and conscious
state to make the declaration, the medical opinion will not
prevail, nor can it be said that since there is no certification of
the doctor as to the fitness of the mind of the declarant, the
dying declaration is not acceptable. A dying declaration can be
oral or in writing and in any adequate method of
communication whether by words or by signs or otherwise will
suffice provided the indication is positive and definite. It is
further held that, what evidential value or weight has to be
attached to such statement necessarily depends upon the facts
and circumstances of each particular case. What is essentially
required is that the person who records dying declaration must
21 APEAL.192-2010.JUDGMENT.odt
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
therefore the voluntary and truthful nature of the declaration
can be established otherwise.
29. In the case of Krishan and Ors. Vs. State of Haryana,
2013 ALL MR (Cri.) 727, the Hon'ble Apex Court has held that
where the dying declaration is true and correct, the attended
circumstances show it to be reliable and it has been recorded in
accordance with law, the deceased made the dying declaration
of her own accord and upon due certification by the doctor with
regard to the state of mind and body, then it may not be
necessary for the court to look for corroboration. In such cases,
the dying declaration alone can form the basis for the conviction
of the accused. But where the dying declaration itself is
attended by suspicious circumstances, has not been recorded in
accordance with law and settled procedures and practices, then
22 APEAL.192-2010.JUDGMENT.odt
it may be necessary for the Court to look for corroboration of
the same.
30. In Uttam Vs. State of Maharashtra (supra), relied
upon by the learned Counsel for the Appellant/accused,
wherein the Hon'ble Apex Court laid down the principles which
needs to be kept in mind while considering the dying
declaration, which is reproduced as under;
"(i) There is neither rule of law nor of prudence that dying
declaration cannot be acted upon without corroboration.
(ii) If the Court is satisfied that the dying declaration is
true and voluntary it can base conviction on it, without
corroboration.
(iii) The Supreme 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 opportunity to observe and identify the
assailants and was in a fit state to make the declaration.
(iv) Where dying declaration is suspicious it should not be
acted upon without corroborative evidence.
(v) Where the deceased was unconscious and could never
make any dying declaration the evidence with regard to it
is to be rejected.
(vi) A dying declaration which suffers from infirmity
cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain
the details as to the occurrence, it is not to be rejected.
(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.
(ix) Normally the court in order to satisfy whether
deceased was in a fit mental condition to make the dying
23 APEAL.192-2010.JUDGMENT.odt
declaration look up to the medical opinion. But where the
eyewitness has said that the deceased was in a fit and
conscious state to make this dying declaration, the medical
opinion cannot prevail.
(x) Where the prosecution version differs from the version
as given in the dying declaration, the said dying
declaration cannot be acted upon."
31. Thus, it is a settled law that the statement made by
the deceased by way of a declaration is admissible in evidence
under Section 32(1) of the Evidence Act. It is not in dispute
that, her statement relates to the cause of her death. In that
event, it qualifies the criteria mentioned in Section 32(1) of the
Evidence Act. There is no particular form or procedure
prescribed for recording a dying declaration nor it is required to
be recorded only by Magistrate. As a general rule, it is advisable
to get the evidence of the declarant certified from the Doctor. In
appropriate cases, the satisfaction of the person recording the
statement regarding the state of mind of the deceased would
also be sufficient to hold that the deceased was in a position to
make a statement. It is settled law that, if the prosecution solely
depends upon the dying declaration, the normal rule is that the
Court must exercise due care and caution to ensure genuineness
of the dying declaration, keeping in mind that the accused had
no opportunity to test the veracity of the statement of the
24 APEAL.192-2010.JUDGMENT.odt
deceased by cross-examination.
32. The law does not insist upon the corroboration of
dying declaration before it can be accepted. The insistence of
corroboration to a dying declaration is only a rule of prudence.
When the Court is satisfied that the dying declaration is
voluntary not tainted by tutoring or animosity, and is not a
product of the imagination of the declarant, in that event, there
is no impediment in convicting the accused on the basis of such
dying declaration. When there are multiple dying declarations,
each dying declaration has to be separately assessed and
evaluated on its own merits.
33. In the present case, the prosecution has laid the
evidence of PW-4/Devanand Bagade vide Exh. 75 and
PW-8/Sanjay Markal Executive Magistrate vide Exh.90. As per
their evidence they both have approached to the Medical Officer
and obtained the medical endorsement from the Medical Officer
regarding the fitness of the declarant and recorded the dying
declarations.
34. The cross-examination of PW-4 shows that, before
25 APEAL.192-2010.JUDGMENT.odt
he approached to the injured in a burn ward, the relatives of the
injured were near to her. This fact is further substantiated by
PW-2/Anusaya who stated that, she alongwith PW-3/Datta and
one Shankar reached to the Hospital and communicated with
injured. Injured disclosed to them that she sustained the burn
injuries on account of falling of kerosene can and catching of
fire. But there was altercation between co-accused Anil and
Shankar. Therefore, Shankar and other relatives got annoyed
and Shankar tutored the deceased Mangala in her presence to
tell the name of accused Anil and others, and therefore, the
statement of the deceased Mangala was recorded. Thus, the
theory of tutoring of Mangala prior to recording of her dying
declarations is brought on record. The cross-examination of
PW-4 admitting the presence of the relatives near the injured
prior to recording her dying declarations, the possibility of
tutoring cannot be ruled out.
35. While testing the evidential value of the said dying
declarations, the learned Counsel for the Appellant/accused
submitted that, the dying declarations recorded by PW-4 and
PW-8 are not consistent with each other, and therefore, deserves
26 APEAL.192-2010.JUDGMENT.odt
to be discarded. He invited our attention towards the dying
declaration recorded by PW-4, wherein the deceased had
attributed the role to the present accused as well as to the other
co-accused. As per her first dying declaration, the present
accused brought the kerosene can and poured on her person
and her husband Anil set her ablaze with a match stick. Her
sister-in-law brought the said kerosene can and handed over to
the present accused and her brother-in-law closed the door,
whereas her second dying declaration recorded by PW-8
attributes role only to the present accused stating that the
present accused poured kerosene on her and set her ablaze. He
submitted that, when two conflicting dying declarations are
there, as a rule of prudence corroboration is required.
36. In support of his contention, he placed reliance on
Samadhan Dhudhaka Koli (supra), wherein in para Nos. 15 and
16 by referring the earlier judgments it is held that, conviction
can indisputably be based on a dying declaration. But, before it
can be acted upon, the same must be held to have been
rendered voluntarily and truthfully. Consistency in the dying
declaration is the relevant factor for placing full reliance
27 APEAL.192-2010.JUDGMENT.odt
thereupon. Here in the present case, deceased herself taken
contradictory and inconsistent stand in different dying
declarations. Therefore, corroboration to such dying
declarations is required.
37. He also placed reliance on Uttam Vs. State of
Maharashtra (supra), wherein the Hon'ble Apex Court
considered the aspect of multiple dying declarations and held
that, if a dying declaration suffers from some infirmity, it cannot
be the sole basis for convicting the accused. In those
circumstances, the court must step back and consider whether
the cumulative factors in a case make it difficult to rely upon the
said dying declaration. It is further held that, the dying
declaration must inspire confidence so as to make it safe to act
upon. Whether it is safe to act upon a dying declaration
depends upon not only the testimony of the person recording
the dying declaration-be it even a Magistrate but also all the
material available on record and the circumstances including
the medical evidence. 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
28 APEAL.192-2010.JUDGMENT.odt
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.
38. Learned APP submitted that, it is not a requirement
of law that, recorder of dying declaration while deposing before
the Court should repeat contents of dying declaration in words
spoken by deceased as to the cause of her death. In support of
his contention, he placed reliance on Full Bench judgment of
this Court in Ramesh Kamble Vs State of Maharashtra.
39. The another issue raised by the learned Counsel for
the Appellant/accused that, the deceased has sustained 100%
burn injuries. It is highly improbable and impossible that she
would be in a position to put her thumb mark and thumb mark
would appear with its ridges and curves.
40. In support of his contention he placed reliance in
the case of The State of Maharashtra Vs. Soma Laxman Nikam
(supra). This aspect is also considered by the Hon'ble Apex
Court in the case of State of Madhya Pradesh Vs. Dal Singh &
Ors., 2013 CRI. L.J. 2983 relied by learned APP and observed
29 APEAL.192-2010.JUDGMENT.odt
that, question whether presence of ridges and curves in thumb
impression taken on declaration made by the declarant who was
almost 100% burnt makes the declaration doubtful depends
upon fact as regards whether the skin of the thumb that was
placed upon the dying declaration was also burnt. Even in case
of such burns in the body, the skin of the small part of the body
i.e. the thumb may remain intact. Here in the present case,
admittedly, there is no evidence on record to show that the skin
of the thumb was also burnt, and therefore, this submission of
the learned Counsel for the Appellant/accused is not acceptable.
41. In the present case, as already observed that the
prosecution is relied upon two dying declarations. Both the
dying declarations are inconsistent as far as the role attributed
to the present accused is concerned. In one dying declaration
she assigns the role to the present accused to the extent of
pouring of the kerosene, whereas in another dying declaration
she assigns the role of pouring the kerosene as well as setting
her ablaze which are found to be contradictory.
42. Having considered various pronouncements, the
Hon'ble Apex Court laid down following principles for a Court
30 APEAL.192-2010.JUDGMENT.odt
to consider when dealing with a case involving multiple dying
declarations. The said principles are reproduced by the Hon'ble
Apex Court in the case of Abhishekh Sharma Vs. State (Govt. of
NCT of Delhi) MANU SC 1159/2023 which are as follows.
"(1) The primary requirement for all dying
declarations is that they should be voluntary and
reliable and that such statements should be in a fit
state of mind;
(2) All dying declarations should be consistent. In
other words, inconsistencies between such statements
should be 'material' for its credibility to be shaken;
(3) When inconsistencies are found between various
dying declarations, other evidence available on record
may be considered for the purposes of corroboration
of the contents of the dying declarations.
(4) The statement treated as a dying declaration must
be interpreted in light of surrounding facts and
circumstances.
(5) Each declaration must be scrutinized on its own
merits. The court has to examine upon which of the
statements reliance can be placed in order to the case
proceeds further.
(6) When there are inconsistencies, the statement that
has been recorded by a Magistrate or like higher
officer can be relied on, subject to the indispensable
qualities of truthfulness and being free of suspicion.
(7) In the presence of inconsistencies, the medical
fitness of the person making such declaration, at the
relevant time, assumes importance along with other
factors such as possibility of tutoring by relatives, etc."
43. A perusal of the dying declarations as stated above
shows that, it was recorded by Police Officer as well as by
31 APEAL.192-2010.JUDGMENT.odt
Executive Magistrate which are inconsistent on material
particulars i.e. as far as the role of the present accused is
concerned. For the basis of conviction, if the dying declaration is
true, reliable and has been recorded in accordance with
establish practice and principles it can be acted upon. By
applying the test to accept the said dying declaration,
admittedly both the dying declarations are not consistent as far
as the role of the present accused is concerned. Thus, the law is
quite clear that, if the dying declaration is absolutely
unacceptable and nothing is brought on record that the
deceased was in such a condition, he or she had not been made
a dying declaration to a witness, there is no justification but
discard the same.
44. In the present case, PW-4 and PW-8 who recorded
the dying declarations are not consistent. Their evidence
nowhere states that they have satisfied themselves as to the
physical and mental fitness of the deceased to give a statement.
The evidence of PW-7/Dr. Pallavi Dhawale also silent as far as
her mental condition is concerned. PW-2/Anusaya, the mother
of the deceased has not supported the case that she died
32 APEAL.192-2010.JUDGMENT.odt
homicidal death. Her evidence shows that, the disclosure by the
deceased which can be treated as oral dying declaration is to
the extent that she sustained burn injuries accidentally. Her
evidence further shows that, it was her relative on whose
instances the deceased has made a statement against the
accused. The circumstance that the presence of the relative near
to the deceased prior to recording of dying declarations,
therefore the dying declarations may result of tutoring and that
possibility cannot be ruled out. The dying declarations raise the
question as to its reliability. Additionally, besides the dying
declarations there is no evidence on record to point out the guilt
of the accused. It is an established principle that, a dying
declaration, if it is free of tutoring, prompting can form the sole
basis of conviction. However, having perused the record
minutely, we do not find any evidence by which we may uphold
the judgment of the Trial Court. For example, nothing on record
indicates that the deceased was illtreated by the present accused
and out of such ill-treatment she set her on fire. The evidence of
PW-8 nowhere shows that it was read over to her after
recording the same and she accepted the contents. There is no
endorsement also that the statement was read over to her and
33 APEAL.192-2010.JUDGMENT.odt
the contents are accepted by her. Admittedly, the dying
declarations cannot be rejected merely because the same is not
read over to the declarant and the declarant admitting whom to
have been correctly recorded.
45. In the light of the above discussion, we are satisfied
that the dying declarations are not recorded as per the legal
provisions and creates doubt. The dying declarations are also
not consistent, therefore, we are not inclined to accept the said
dying declarations by placing reliance upon the same. We are,
therefore, of the opinion that the prosecution failed to prove
that the evidence of dying declarations is cogent, reliable and
trustworthy. Therefore, further corroboration is required. In our
considered opinion, the Trial Court failed to appreciate the
evidence and convicted the accused. The plea of the accused is
succeeded as the accused has shown that the dying declarations
are inconsistent, and therefore, corroboration was required. The
veracity of the oral dying declaration is also doubtful.
46. We are, therefore, of the opinion that the Appellant/
accused succeeds. In view of that, the Appeal deserves to be
allowed. Accordingly, we proceed to pass the following order:
34 APEAL.192-2010.JUDGMENT.odt
ORDER
i. The Criminal Appeal is allowed.
ii. The judgment and order of sentence passed in
Sessions Trial No. 89/2008 passed by the Additional
Sessions Judge, Buldana, is hereby quashed and set
aside.
iii. The Appellant/accused is acquitted from the charges
punishable under Section 302 of the Indian Penal
Code and bail bonds stand discharged.
iv. R & P be sent to the Trial Court.
47. Pending application/s, if any, shall stand disposed of
accordingly.
(NANDESH S. DESHPANDE, J.) (URMILA JOSHI PHALKE, J.)
BrWankhede/S.D.Bhimte
Signed by: Mr.S.D.Bhimte
Designation: PA To Honourable Judge
Date: 23/09/2025 14:32:18
