[Cites 17, Cited by 0]
Bombay High Court
Piraji Madhav Kumbhargave vs The State Of Maharashtra on 7 May, 2026
Author: Nitin B. Suryawanshi
Bench: Nitin B. Suryawanshi
2026:BHC-AUG:20714-DB
327.2023Appeal.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 327 OF 2023
Piraji S/o Madhav Kumbhargave
Age : 30 years, Occ : Agril.,
R/o Shelgaon (Chatri), Tq. Naigaon,
Dist. Nanded.
..APPELLANT
(Accused No.1)
-VERSUS-
The State of Maharashtra
..RESPONDENT
...
Advocate for Appellant : Mr. U.B. Bilolikar
APP for Respondent/State : Mr. M.K. Goyanka
...
CORAM : NITIN B. SURYAWANSHI AND
VAISHALI PATIL-JADHAV, JJ.
RESERVED ON : 20th APRIL, 2026
PRONOUNCED ON : 07th MAY, 2026
ORAL JUDGMENT (PER VAISHALI PATIL-JADHAV, J) :
. The present appellant herein stands convicted for the
offence punishable under Section 302 of the Indian Penal Code (for
short, "IPC") and is sentenced to suffer imprisonment for life and to
pay fine of Rs.5,000/-, in default, to suffer rigorous imprisonment for
six months, in Sessions Case No.28/2020 by the learned Additional
Sessions Judge, Biloli, vide judgment and order dated 27.03.2023.
Being aggrieved by the said judgment, the appellant has preferred
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the present Criminal Appeal.
2. The case of the prosecution, in nutshell, is as follows :-
The marriage between accused no.1 - Piraji and
deceased Komal took place prior to about one and half years of
19.07.2019. After a few days of marriage accused no.1 started
assaulting and harassing the deceased on petty grounds. Accused
nos.2 and 3 also used to illtreat deceased Komal. On 19/07/2019, at
about 5.00 a.m., accused nos.1 and 3 asked the deceased to wake up,
they abused her and accused no.1 assaulted her. Accused no.1
threatened the deceased that he would see her and left for the field.
At about, 8.00 a.m., he returned home and asked Komal that she did
not wake up early and she did not work, saying so, he poured
kerosene from plastic can on Komal, ignited a matchstick and set her
on fire. Komal raised hue and cry. Accused no.2 - Madhav reached
the spot and put a blanket on Komal and extinguished the fire. Komal
sustained burn injuries on her hands, legs, back, stomach, face and
chest. She was taken by her neighbours to Government Hospital,
Naigaon and from there she was referred to District Government
Hospital, Nanded.
327.2023Appeal.odt
In the hospital, Executive Magistrate Mr. Vijaykumar
Nagorao Pate (PW-4) recorded dying declaration of Komal. Her dying
declaration was also recorded by the Police Head Constable
Mr.Ramsinh Jaypalsinh Bayas (PW-2). He then forwarded the same to
the Police Station. Accordingly, Crime No.107/2019 was registered
for the offences punishable under Sections 307, 498-A and 504 read
with 34 of the Indian Penal Code. During treatment, Komal
succumbed to the burn injuries on 23.07.2019. After her death,
Section 302 of the Indian Penal Code was added in the crime.
Investigation was conducted and on completion of investigation, the
charge-sheet was filed against three accused i.e. appellant-accused
no.1, his father - accused no.2 and his mother - accused no.3.
The prosecution examined seven witnesses in support of
its case. After recording evidence, the trial Court found the appellant
guilty and accordingly, convicted him as aforesaid and acquitted
accused nos.2 and 3. Hence, the present appeal.
3. Learned Advocate Mr. U.B. Bilolikar for the appellant
submits that the prosecution case rests entirely on two dying
declarations, which are not consistent, trustworthy and reliable. No
medical record pertaining to the initial admission and treatment of
the deceased at Rural Hospital, Naigaon is produced and there is no
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record reflecting the history of homicidal burns. Taking into
consideration the fact that Komal had suffered 96% burn injuries and
she was given medicines named, Cefsula and Tramadol and because
of the influence of medicines, it was not possible for her to give dying
declarations. Both dying declarations are inconsistent with each
other. PW-2 and PW-4 have not verified about the mental fitness of
the deceased while recording the dying declarations. PW-4 in his
cross-examination admits that though there is an endorsement of the
doctor regarding fitness, the doctor was standing outside at the time
of recording of dying declaration. Doctor has stated that deceased
was in poor general condition and was uncooperative and because of
pain, she was groaning, thereby rendering the statement unreliable.
Therefore, it cannot be said that she was in a fit condition to give a
reliable dying declaration. The dying declaration recorded by PW-2 is
not recorded in question-answer form and is not in the handwriting
of PW-2 and the one in whose handwriting it is recorded, is not
examined.
4. He further submits that in absence of trustworthy dying
declaration, the learned trial Court should have looked for
corroboration, but there is no corroborative evidence or independent
witnesses. The prosecution has failed to prove the intention and
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motive. In these circumstances, the prosecution has failed to prove
the case beyond reasonable doubt and the appellant is entitled for
benefit of doubt. Hence, the appellant be acquitted.
5. In support of his case, learned Advocate for the appellant
relied upon the judgments in (i) Uttam Vs. The State of Maharashtra
(MANU/SC/0787/2022), (ii) Sampat Babso Kale and others Vs. The
State of Maharashtra (AIR 2019 SC 1852), (iii) Ratan Vs. The State
of Maharashtra (MANU/MH/3268/2024),(iv) Prabhakar Gangadhar
Lokhande Vs. The State of Maharashtra (MANU/MH/5125/2024),
(v) Shahaji Ashroba Falake and another Vs. The State of Maharashtra
in Criminal Appeal No. 675/2021, dated 11.03.2025, (vi) Sandip
Prakash Rathod Vs. The State of Maharashtra
(MANU/MH/4426/2022), (vii) Malhari Ranoji Warkad Vs. The State
of Maharashtra (2025(4) Mh.L.J. (Cri.) 473).
6. Learned A.P.P. submits that in both the dying
declarations, the deceased has categorically attributed the fact of
putting kerosene on her and setting her on fire to the appellant. Both
the dying declarations were recorded in presence of the Medical
Officer, and there are endorsements by the Medical Officer about the
mental fitness, orientation and consciousness of the deceased. Both
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the dying declarations are consistent about the happening of the
incident and role attributed to the accused. According to him, since
the dorsum of hand was burnt, it was not possible to take her thumb
impression. So the dying declarations are endorsed by taking the toe
impression of the left foot of Komal. The said fact is proved by the
inquest panchanama (Exhibit P-44), wherein there is specific
reference to the left foot toe of the deceased and that there was ink
to the left toe. The prosecution has proved both the dying
declarations and hence the conviction of the accused is sustainable
on the basis of the same.
According to learned A.P.P., the trial Court has properly
appreciated the evidence and has rightly convicted the appellant.
Learned A.P.P. further submits that there is no merit in the appeal and
the same is liable to be dismissed. He relied on the judgments, (i)
State of Uttar Pradesh Vs. Veerpal and another [(2022) 4 SCC 741],
(ii) Khushal Rao Vs. State of Bombay (1957 SCC Online SC 20),
(iii) Laxman Vs. State of Maharashtra [(2002) 6 SCC 710] and
(iv)Mukesh Vs. State for NCT of Delhi (AIR 2017 SC 2161).
7. Heard learned Advocate for the appellant and learned
A.P.P. for the respondent/State, at length. With their assistance, we
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have perused the record.
8. We now proceed to consider the dying declarations
which are the basis for conviction of the appellant.
9. Dying Declaration at Exhibit-61 is the first dying
declaration recorded by PW-4 Naib Tahsildar, Pate. It is recorded in
question-answers form. To the question as to why Komal received
burn injuries, how the incident has happened and who all where
present, Komal disclosed that in the night there was a call from her
sister-in-law. She told something. She does not know what she told
but the husband assaulted her in the morning by wooden log and
pipe. Pipe was broken. She shouted. Husband poured kerosene,
lighted a matchstick, set her on fire and went out. Father-in-law
extinguished the fire by a blanket. Neighbours brought her in the
hospital. Husband used to illtreat her as he was not liking her. She
had complaint against the mother-in-law- Sagarbai, father-in-law -
Madhav and husband - Piraji. Recording of dying declaration was
commenced at 5.35 p.m. and recording was completed by 6.00 p.m.
There are endorsements of the Medical Officer, PW-3 at the beginning
and at the end of the dying declaration.
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10. PW-4 - Naib Tahsildar Mr. Vijay Pate, who recorded first
dying declaration Exhibit-61, has deposed that on receiving a letter
from the Gramin Police Station, he went to the burn ward of
Government Hospital, Nanded at 5.00 p.m. He inquired with the
Medical Officer about the patient. Medical Officer showed him the
patient. He inquired with the Medical Officer, whether the patient
was in a position to make statement. The Medical Officer examined
the patient and opined that the patient was in a position to make the
statement. Then he asked relatives of the patient and policemen to
leave the ward. Then, he introduced himself and inquired with Komal
about the incident. In response Komal disclosed stated that she is a
resident of village Chatrishelgaon and she resides with her husband
and his parents. She disclosed that on the previous day, her sister-in-
law had made a phone call and that there was a talk between her
sister-in-law and her husband, and that, on the next day, in the
morning her husband assaulted her by means of a wooden log and
pipe. At that time, the pipe was broken and thereafter, her husband
had poured kerosene on her person and set her on fire. Then he left
the house and that her father-in-law had put a blanket on her person
and extinguished the fire. Before extinguishing the fire, her both
hands, legs, back, stomach, face and chest had burned. Thereafter,
she was brought by her neighbours for treatment to the Government
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Hospital, Naigaon. From there, she was further brought to
Government Hospital, Vishnupuri, Nanded and she has complained
against her husband, mother-in-law and father-in-law. Patient
admitted contents of the dying declaration to be correct and since the
entire body of the patient was wrapped with bandage, he had
obtained her left toe impression on the dying declaration. After
recording the dying declaration, he had requested the Medical Officer
to examine the patient about her condition and accordingly he had
examined the patient and opined that the patient was stable. The
dying declaration is signed by the doctor and by PW-4. Recording of
the dying declaration started at 7.30 p.m. and ended at 8.00 p.m.
. In cross, PW-4 has stated that he received a telephonic
message from the police and also received a phone call at about 4.00
p.m. from PW-2 Head Constable Mr.Ramsinh Jaypalsinh Bayas.
Thereafter, he went to the hospital and along with Mr. Bayas, went to
the burn ward. He said that he did not issue written letter to the
Medical Officer. When he visited the patient in the burn ward, he
noticed that the patient was completely burned. At that time, due to
pains, Komal was groaning. When the Medical Officer was examining
the patient, he was standing at a distance of 10 to 8 ft and cannot
state what talks had taken place between the patient and Medical
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Officer. He further admitted that he did not put questions to Komal to
ascertain whether she was able to make a statement. At the time of
recording of statement, except Komal no one was present there and
the doctor was standing outside. After recording the statement he
had called the doctor to examine Komal.
11. Second dying declaration Exhibit-47 is recorded at 7.30
p.m. on 19.07.2019 by PW-2 Police Head Constable, Bayas. PW-2
Police Head Constable has deposed that on 19.07.2019, when he was
posted at Outpost, Government Hospital, Nanded at about 19.20
hours, a message was received from Kuntur Police Station for
recording the statement of injured Komal. Accordingly, we went to
ward no.9 and met the Medical Officer. He requested him to examine
the patient. The Medical Officer examined the patient and opined
that she was in fit condition to give statement. He put that
endorsement on the blank paper. Thereafter, he asked the relatives of
the patient to go outside the ward and started recording the
statement. On inquiry, Komal disclosed while taking treatment at
Ward No.1 at Government Hospital, Vishnupuri, Nanded that she is
resident of village Chatrishelgaon. She stayed in the joint family of
husband, mother-in-law and father-in-law. After some days of
marriage, her husband started beating and illtreating her on small
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reasons. Father-in-law and mother-in-law used to illtreat her. On
19.07.2019, at about 5 a.m. husband and mother-in-law woke her up
and they both abused her. Husband assaulted her and left for the
field saying that he would see her. Later on, husband returned to the
house at about 8 a.m. and asked her that she did not wake up early
and she did not work and brought a can of kerosene and poured it on
her and ignited a matchstick and set her on fire. When she raised
shouts, father-in-law had extinguished the fire by putting a blanket
on her person.
In cross, he deposed that he had received wireless
message informing him about the patient. Thereafter, he made entry
in the register. Before recording of statement by him, another
statement was recorded by PW-4 Naib Tahsildar, Mr. Pate. He did not
request to the Medical Officer in writing for examining the patient.
When he went to the ward, at that time, relatives of the patient were
present in the ward and the movement of the said patient was blink.
The Medical Officer did not put question to the patient. The patient
was whining due to pain. While recording the statement he had put
the question and the patient had replied but he did not record the
dying declaration in question-answer form. He deposed that he had
not made entry in the statement that the patient was able to speak
and that her mental condition was good. He had taken the toe
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impression of the patient but did not attest the same. The dying
declaration is not recorded in his handwriting. He denied the
suggestion that Komal was not in position to make statement and
that the dying declaration was recorded as per say of her relatives.
He also denied the suggestion that the Medical Officer did not
examine Komal and put endorsement on the statement.
12. PW-3 - Medical Officer Vyankatesh Sudhakarrao Kulkarni
has stated that he was throughout present while recording of the
dying declarations (Exhibit-47 and Exhibit-61). The Executive
Magistrate, Mr. Vijaykumar Pate had visited the hospital at 5.35 p.m.
for recording the dying declaration of injured Komal and he inquired
with him about the condition of the patient to make a statement. He
examined the patient and made endorsement to the effect that the
patient was conscious, oriented, mentally fit and her vital parameters
were within normal limits.
Thereafter, at 7.30 p.m. Head Constable Mr. Bayas
(PW-2) had visited the hospital for recording dying declaration. At
that time, he had requested him to examine the patient. He examined
the patient and found that the patient was conscious, oriented and
mentally fit. That her vital parameters were within normal limits for
recording the dying declaration.
327.2023Appeal.odt
. In cross, he admitted that Mr. Bayas (PW-2) and Mr. Pate
(PW-4) had given written requisition for his opinion but he had not
brought the same with him. He denied the suggestion that on that
day at about 5 p.m. he had examined the patient and he had made
an endorsement on the case paper that patient had fever and that her
blood pressure was 96/60 and that her general condition was poor.
He has mentioned in the case paper that she was a-febrile.
Understanding about the patient is given to her relatives. He then
produced the original case papers at Exhibit-59 collectively. He
admitted that patient had sustained 96% burn injuries and there
were superficial and deep burn injuries on the face and neck of
patient. He stated that only after going through the entries in the
case paper, he can state that he had prescribed Cefsula 1.5 gm and
Tramadol, but he admitted that those are antibiotics and painkiller
drugs. He denied that pain killer drugs are sedatives. He admitted
that Komal had sustained 96% burn injuries. He admitted that when
he examined the patient, general condition of the patient was poor
and that her blood pressure was 95. He admitted that in burn cases,
the patient goes in shock and that it may affect his mental faculty. He
volunteers that it may generally happen after 48 hours.
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13. PW-1 Sanjay Jaywantrao Aaneraye had reached the spot
at the time of incident. He has deposed that on 19.07.2019, at about
8.00 a.m., he was proceeding to Naigaon by motorcycle. He heard
the shouts from the house of accused, and therefore, stopped his
motorcycle and found that Komal, the wife of accused, was ablazed.
Father-in-law was present in the courtyard of the house and he was
trying to extinguish the fire. Crowd had gathered in front of the
house of the accused. Thereafter, ambulance was called and Komal
was carried to Naigaon Hospital. At that time, Komal was not in a
position to speak. Police had recorded his statement. PW-1 was
declared hostile.
14. PW-5 - Anita Vyankatrao Patne, mother of the deceased
has not supported the prosecution case. She has deposed that
marriage of Komal with accused no.1 - Piraji had taken place on
21.02.2018 at village Chatrishelgaon. After marriage, Komal was
treated well by the accused persons. The incident has taken place
prior to about three years. At that time, Komal was residing with the
accused persons. On that day, at about 11.00 a.m., she had received a
message from her neighbour that deceased Komal while cooking, her
corner of the saree had caught fire and therefore, she has sustained
burn injuries and she was admitted in the hospital. Accordingly, she
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along with her brother Nagnath and sister Sunanda had gone to
Government Hospital, Nanded. They met Komal, however, she did
not talk. Thereafter, about 4 days, Komal expired. Police did not
record her statement.
In cross, she stated that when she had been to the hospital, at
that time, Medical Officer informed that condition of Komal was
critical.
15. PW-6- Investigating Officer, Sharad Subhash Mare has
described the steps taken by him during investigation. He has stated
that on 20.07.2019, when he was attached to Kuntur Police Station,
he was assigned the investigation of Crime No.107/2019. He was
handed over the statement of the victim on the basis of which crime
was registered. He visited the spot of incident and prepared the spot
panchanama (Exhibit-25). At that time he had seized burnt pieces of
Saree, a match box and a plastic can. He had recorded the statement
of PW-1 Sanjay (Exhibit P-74). He was shown portion mark "A" of
statement of PW-1 Sanjay and portion "A" and "B" of statement of
PW-5 Anita. He stated that those were as per their say. He had
arrested accused no.1 and prepared the arrest panchanama (Exhibit
P-76). He had forwarded the seized articles to Chemical Analyzer on
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04.09.2019 (Exhibit P-77).
In cross, he deposed that after the incident deceased
Komal was admitted at Rural Hospital, Naigaon. On that day, entry
was made in general diary that deceased Komal and accused no.2
Madhav were admitted in the hospital as they had sustained burn
injuries and that they were referred to the Government Hospital,
Nanded for further treatment. He did not collect documents in
relation to the admission and treatment given to the deceased Komal
and accused no.2 at Naigaon Hospital. It did not reveal during the
investigation that accused no.2 - Madhav had sustained burn injuries
while he was attempting to extinguish the fire. He did not conduct
investigation as to the cause of injuries sustained by accused no.2 -
Madhav. He did not seize any register or its extract from PW-2 Mr.
Bayas. He did not send a wireless message to Nanded Rural Police
Station for recording the statement of deceased Komal. He did not
collect the call details record in respect of the mobile number of
sister-in-law of Komal. He did not inquire regarding the wooden log
and pipe, which was referred in dying declaration Exhibit-61. He did
not seize clothes of the accused no.1. He cannot recollect the date on
which PW-4 Pate had handed over the dying declaration (Exhibit-61).
He received the dying declaration Exhibit-61 along with covering
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letter on 31.07.2019.
16. Law in respect of appreciation of dying declarations is
well settled. The principles governing the dying declarations are laid
down in the case of Paniben (Smt.) Vs. State of Gujarat [(1992) 2
SCC 474] as under :-
"18.... (i) There is neither Rule of law nor of prudence that dying
declaration cannot be acted upon without corroboration. (Munnu
Raja v. State of M.P. MANU/SC/0174/1975MANU/SC/0174/1975 :
(1976) 3 SCC 104)
(ii) If the Court is satisfied that the dying declaration is true and
voluntary it can base conviction on it, without corroboration. (State of
U.P. v. Ram Sagar Yadav
MANU/SC/0118/1985MANU/SC/0118/1985 : (1985) 1 SCC 552;
Ramawati Devi v. State of Bihar
MANU/SC/0135/1983MANU/SC/0135/1983 : (1983) 1 SCC 211).
(iii) This 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. (K. Ramachandra Reddy v. Public Prosecutor
MANU/SC/0127/1976MANU/SC/0127/1976 : (1976) 3 SCC 618).
(iv) Where dying declaration is suspicious it should not be acted upon
without corroborative evidence. (Rasheed Beg v. State of M.P.
MANU/SC/0160/1973MANU/SC/0160/1973 : (1974) 4 SCC 264)
(v) Where the deceased was unconscious and could never make any
dying declaration the evidence with regard to it is to be rejected.
(Kake Singh v. State of M.P. 1981 Suppl. SCC 25)
(vi) A dying declaration which suffers from infirmity cannot form the
basis of conviction. (Ram Manorath v. State of U.P.
MANU/SC/0207/1981MANU/SC/0207/1981 : (1981) 2 SCC 654)
(vii) Merely because a dying declaration does not contain the details
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as to the occurrence, it is not to be rejected. (State of Maharashtra v.
Krishnamurti Laxmipati Naidu 1980 Suppl. SCC 455)
(viii) Equally, merely because it is a brief statement, it is not be
discarded. On the contrary, the shortness of the statement itself
guarantees truth. (Surajdeo Oza v. State of Bihar
MANU/SC/0269/1979MANU/SC/0269/1979 : 1980 Suppl. SCC
769).
(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 eye witness has said that the deceased
was in a fit and conscious state to make this dying declaration, the
medical opinion cannot prevail. (Nanahau Ram v. State of M.P.
MANU/SC/0334/1988MANU/SC/0334/1988 : 1988 Suppl. SCC
152).
(x) Where the prosecution version differs from the version as given in
the dying declaration, the said declaration cannot be acted upon.
(State of U.P. v. Madan Mohan
MANU/SC/0565/1989MANU/SC/0565/1989 : (1989) 3 SCC 390)."
17. The Apex Court in the case of Uttam Vs. The State of
Maharashtra [(2022) 8 SCC 576] by relying on aforestated principles
observed that :-
"15. In cases involving multiple dying declarations made by the
deceased, the question that arises for consideration is as to which of
the said dying declarations ought to be believed by the Court and
what would be the guiding factors for arriving at a just and lawful
conclusion. The problem becomes all the more knotty when the dying
declarations made by the deceased are found to be contradictory.
Faced with such a situation, the Court would be expected to carefully
scrutinize the evidence to find out as to which of the dying
declarations can be corroborated by other material evidence
produced by the prosecution. Of equal significance is the condition of
the deceased at the relevant point in time, the medical evidence
brought on record that would indicate the physical and mental fitness
of the deceased, the scope of the close relatives/family members
having influenced/tutored the deceased and all the other attendant
circumstances that would help the Court in exercise of its discretion."
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18. On applying the aforesaid ratio to the facts of the present
case, we are of the view that there are material inconsistencies in the
dying declarations Exhibit-47 and Exhibit-61. Therefore, they are not
reliable. If we compare both the dying declarations, there are glaring
infirmities in both the dying declarations. On evaluation of the
evidence adduced by the prosecution, it appears that these dying
declarations cannot be said to be voluntary, truthful and hence would
not inspire confidence of the Court for the following reasons:-
There is variance in two dying declarations. (i) In the first
dying declaration, the incident according to the deceased arose
because of the call of her sister-in-law and (ii) in the second dying
declaration, the incident had occurred at 5.00 a.m., when her
husband assaulted her as she did not wake up and she did not work.
(iii) PW-2 in his cross examination deposed that movement of Komal
was blink, Medical Officer did not put questions to her and the
deceased was whining, (iv) Further in his cross-examination, it has
come that he had put the questions and deceased replied to them but
the statement is not recorded in question-answer form, (v) PW-2 has
admitted that the dying declaration is not recorded in his
handwriting, (vi) The one in whose handwriting the dying
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declaration was recorded is not examined, (vii) PW-2 Mr. Bayas
stated that before recording dying declaration, he did not put any
questions to the deceased Komal for checking her ability to speak and
mental condition, (viii) He has admitted that the toe impression of
deceased Komal was not attested by him, (ix) PW-4 has also not
stated anything regarding the mental fitness and orientation of
deceased Komal. In chief, PW-4 has stated that Medical Officer was
throughout present while recording the dying declarations, but in his
cross, he has deposed that the doctor was standing outside while he
was recording the dying declaration. (x) No written requisition was
given by PW-2 and PW-4 to the doctor for recording the dying
declarations. (xi) PW-4 has stated that before recording the
statement, he had asked the relatives of the patient and policemen to
leave the ward, PW-2 had also asked the relatives of deceased Komal
to leave the ward at the time of recording of dying declaration. Thus,
possibility of tutoring cannot be ruled out.
19. The deceased Komal had sustained 96% burn injuries
and the doctor had also stated that her general condition was poor
and and it is noted in the medical papers that the patient was un-
cooperative. In such state, the lengthy dying declaration is highly
impossible, when all the witnesses deposed that patient was groaning
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and whining and her movement was blink, which means that her
condition was serious and she was in pains. The medical papers and
the statement of the doctor shows that she was given Cefsula 1.5 gm
and Tramadol, which are sedatives and painkillers. In such condition,
there is a doubt about the mental condition of deceased Komal
though the doctor had made an endorsement to that effect. In the
present case, the administration of Tramadol and its possible effects
on the mental condition of the deceased raise serious doubts
regarding the voluntariness and reliability of the statement. The
Medical Officer has also admitted that condition of patient was a-
febrile. He has mentioned in the case papers (Exhibit 59) that she
was a-febrile, understanding about the patient is given to her
relatives.
These admissions by the Medical Officer coupled with
the fact that he was standing outside and he has not made an
endorsement about the patient, about her fit mental condition to give
statement create further doubt about the dying declarations. Further,
Cefsula 1.5 gm and Tramadol which are sedatives and painkillers
were administered to the patient. These drugs are bound to affect the
mental condition of the deceased. This also raises serious doubt
about the voluntariness and reliability of both dying declarations.
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20. The evidence of mother of deceased, PW-5 has further
created doubt about the truthfulness as she has categorically deposed
that she received the message that while cooking, the corner of
Komal's saree caught fire and due to that she received the burn
injuries. She has also stated that when she visited Komal at Civil
Hospital, her condition was critical. PW-1 - Sanjay Aaneraye who
reached the spot of incident immediately, has also deposed that
Komal was not in a position to speak. These aspects further create
doubt about the veracity of both the dying declarations.
21. The medical papers pertaining to the first admission to
Government Hospital, Naigaon are not produced on record and in
both the dying declarations, deceased Komal states that she was
brought to the hospital by neighbours, but the statement of the
neighbours was not recorded. Non-production of crucial medical
evidence and for non-examination of material witnesses, adverse
inference under Section 114(g) of Evidence Act needs to be drawn
against the prosecution and the accused is entitled to benefit of
doubt.
22. In absence of corroboration and due to variance in both
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the dying declarations, both the dying declarations suffer from
serious infirmities and in absence of any corroborative evidence in
support of the dying declarations, we find it difficult to sustain the
conviction of the accused on the basis of the dying declarations.
23. In Uttam (supra), it is held that where there are
multiple dying declarations which suffer from inconsistencies and
infirmities, they cannot, form the sole basis of conviction and would
require corroboration. The Court is bound to scrutinize such
declarations with caution and ensure that the statement is not a
result of tutoring or prompting nor a product of imagination. It is
incumbent upon the Court to ascertain, from the evidence on record,
that the deceased was in a fit state of mind at the time of making the
declaration, and also, the person recording the dying declaration
must be satisfied as to such mental fitness. Any lacunae or
procedural irregularity in recording the dying declaration casts a
serious doubt on its reliability, and in such circumstances, the benefit
of doubt must be given to the accused.
24. In Shahji (supra), it is held that procedural lapses in
recording dying declaration and non-examination of material
witnesses cast a serious doubt on the prosecution case. The Court
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must seek corroboration and in absence thereof, benefit of doubt
must be extended to the accused.
25. In Sampat (supra), it is held that a conviction cannot be
sustained solely on the basis of doubtful dying declarations. Where
there exists any uncertainty regarding the mental fitness of the
declarant, such declarations lose their evidentiary reliability.
Considering the factual matrix in the said decision, in cases where
the deceased had suffered extensive burn injuries such as 98% burns
and was injected sedatives, there arises a real possibility of the
declarant being in a state of unconsciousness or delusion. The
endorsement of the doctor as to the mental fitness of the victim must
precede the recording of the statement; failing which, the dying
declaration becomes doubtful.
26. In Ratan (supra) it is held that when the dying
declaration is not recorded in the words of the deceased and suffers
from procedural irregularities, no conviction can be based solely
thereon and it would be unsafe to rely upon them without
independent corroboration. Administration of medications, coupled
with the trauma suffered by the deceased, adversely affect the
orientation and mental fitness of the victim. The Chemical Analyser's
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report indicating presence of kerosene residue on certain articles, by
itself, is not sufficient to establish the prosecution case in the absence
of reliable and cogent corroborative evidence.
27. In Sandip Prakash Rathod Vs. The State of Maharashtra ,
it is held that a dying declaration, to be made the sole basis of
conviction, must inspire full confidence and be free from any doubt
or infirmity. Failure of the prosecution to establish or explain any
cogent motive for commission of the alleged crime, further weakens
its case.
28. In Malhari Ranoji Warkad Vs. State of Maharashtra , it is
held that conviction cannot be sustained solely on doubtful and
inconsistent dying declarations in absence of corroborative evidence.
29. In view of the aforestated reasons, decisions relied upon
by the learned A.P.P. are not applicable to the facts of the present
case.
30. In the result, the following order :-
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and order of conviction dated
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27.03.2023 passed by the Additional Sessions Judge, Biloli in
Sessions Case No.28/2020 thereby convicting the appellant under
Section 302 of the Indian Penal Code, is hereby quashed and set
aside.
(iii) The appellant is acquitted of the charge under Section 302 of
the Indian Penal Code.
(iv) The appellant be released forthwith, if not required in any
other case.
(v) Fine amount, if paid by the appellant, be refunded to him after
the Appeal period is over.
(vi) The appellant shall execute bond of Rs. 15,000/- under Section
481 of the Bhartiya Nagrik Suraksha Sanhita, 2023.
(vii) Muddemal property be dealt with in accordance with law.
(VAISHALI PATIL-JADHAV,J.) (NITIN B. SURYAWANSHI,J.)
sga
