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Nanasaheb Ganpat Nehul & Anr vs State Of Maha on 25 April, 2018

1 Cri.Appeal 7/2003

IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPEAL NO.7 OF 2003

1) Nanasaheb s/o Ganpat Nehul
Age: 25 Yrs., occu. Service,
R/o Javkhede Dumala,
Tq. Pathardi, Dist. Ahmednagar (abated)

2) Indubai w/o Ganpat Nehul
Age: 56 Yrs., occu. Household
R/o Javkhede Dumala,
Tq. Pathardi, Dist. Ahmednagar APPELLANTS

VERSUS

The State of Maharashtra RESPONDENT
—–
Mr.R.K.Temkar, Advocate h/for Mr.G.B.Rajale,
Advocate for Appellants;

Mr. SJ Salgare, APP for Respondent-State.
—–

CORAM : SUNIL P.DESHMUKH
P.R.BORA, JJ.

DATE OF RESERVING JUDGMENT :15th February, 2018
DATE OF PRONOUNCING JUDGMENT:25th April,2018

JUDGMENT (PER:- P.R.BORA,J.)

1) Original accused No.1 and 3 in Sessions

Case No.175/2000 decided by the Court of 3 rd

Additional Sessions Judge, at Ahmednagar on

29.11.2002, had preferred present appeal

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challenging the order of conviction and sentence

passed against them in the said Sessions case.

Vide the impugned judgment and order, appellant

No.1 was convicted for the offences punishable

under Section 498A and 323 of Indian Penal Code

whereas appellant No.2 was convicted for the

offences punishable under Sections 302, 498A and

323 of IPC.

2) During pendency of the present appeal,

appellant No.1 viz. Nanasaheb Ganpat Nehul

expired and the appeal thus stood abated against

him. Appellant No.2 has prosecuted the appeal

further. Appellant No.2 is hereinafter referred

to as accused No.3.

3) It was the case of prosecution that

accused No.3 poured kerosene on person of

deceased Sangita, on 29.8.2000 at about 4.30 p.m.

at her house and set her on fire. Deceased

Sangita received extensive burn injuries. She was

immediately removed to the hospital, but could

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not survive and succumbed to the burn injuries

after about four days of the alleged occurrence.

While in Civil Hospital at Ahmednagar, her

statement was recorded by Mohan Natha Pawar, who

was then working as A.S.I. at Police

station,Pathardi. On the basis of the statement

so given by deceased Sangita, crime No.179/2000

was registered against four persons for the

offences punishable under Sections 307, 498A,

323, 504, 506 of IPC and investigation was set in

motion. Offence was registered against husband,

brother-in-law, mother-in-law and wife of

brother-in-law of deceased Sangita.

4) After death of deceased Sangita, offence

registered under Section 307 of IPC was converted

into an offence under Section 302 of IPC. While

in civil hospital at Ahmednagar, dying

declaration of deceased Sangita was recorded by

the Special Executive Magistrate (PW 4).

Investigating Officer, during the course of

investigation visited the spot of occurrence and

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prepared spot panchanama. After death of

deceased Sangita, inquest panchanama was prepared

and post mortem examination was got done. The

Investigating Officer recorded statements of

necessary witnesses and also collected the

necessary reports. After completing the

investigation in the matter, charge sheet was

filed against four accused persons in the court

of JMFC at Pathardi for the offences punishable

under Sections 302, 498A read 34 of IPC and under

Section 323, 504, 506 of IPC. Since the offence

under Section 302 of IPC was exclusively trial by

the Court of Sessions, the learned JMFC at

Pathardi committed the case to the Sessions Court

at Ahmednagar. After committal, the learned Ad

hoc Additional Sessions Judge framed the charge

against the accused. None of the accused pleaded

guilty and, therefore, trial was proceeded

further against them.

5) In order to prove guilt of the accused,

the prosecution examined six witnesses. The

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defense of the accused persons was of total

denial. One Vishwas Madhavrao Nehul was

examined as the defence witness by the accused.

The learned Additional Sessions Judge, on the

basis of evidence brought before him, convicted

accused No.3, viz. Indubai Ganpat Nehul for the

offences punishable under Sections 302, 498A and

323 of IPC and sentenced her to suffer rigorous

imprisonment for life. Accused No. 1 was

convicted for the offence punishable under

Section 498A and 323 of IPC. Original accused

Nos. 2 and 4 were acquitted of all the charges

levelled against them. The convicted accused

preferred the present appeal taking exception to

the judgment and order of conviction. As noted

above, since accused No.1 died during pendency of

the appeal, the appeal stood abated against him

and only accused No. 3 has prosecuted the appeal

further.

6) Learned Counsel appearing for accused

No.3 assailed the impugned judgment on various

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grounds. Learned Counsel submitted that the

learned Trial Judge has given undue weightage to

the dying declarations of deceased Sangita and

has based the conviction of accused no.3 mainly

relying upon the so called dying declarations of

deceased Sangita. Learned Counsel further

submitted that none of the dying declarations is

free from doubt so as to place implicit reliance

upon it. The learned Counsel submitted that the

medical evidence on record demonstrates that

deceased Sangita had received extensive burn

injuries to the extent of 99%. The learned

Counsel further submitted that having regard to

the nature and percentage of burn injuries caused

to deceased Sangita, it appears improbable and

unbelievable that any statement or dying

declaration might have been given by her either

to the Executive Magistrate or to the police

person.

7) The learned Counsel further submitted

that there are several infirmities in the

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evidence brought on record by the prosecution in

the form of dying declaration of deceased Sangita

and the conviction of the accused persons could

not have been based on such a doubtful evidence.

The learned Counsel submitted that fitness of

deceased Sangita was not obtained prior to

recording of her statement and the evidence on

record demonstrates that deceased Sangita was not

fit to give her statement throughout while in the

hospital. The learned Counsel further submitted

that the thumb impression alleged to be of

deceased Sangita below the said dying declaration

is also doubtful having regard to the medical

evidence on record. The learned Counsel

submitted that in view of the fact that deceased

Sangita had suffered 99% burns, it was not

possible for her to affix her thumb impression on

any document.

8) The learned Counsel further submitted

that the statement of deceased Sangita, on the

basis of which F.I.R. was registered in the

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matter, is also shrouded with doubt. The learned

Counsel submitted that having regard to the fact

that deceased Sangita had burnt to 99%, it

appears improbable that she would have given any

such statement which runs into more than three

pages and for recording of which, period of about

more than one hour was likely to be exhausted.

The learned Counsel further submitted that the

facts, as are appearing in the dying

declarations, one recorded by Naib Tahsildar and

the other recorded by A.S.I. Mohan Natha Pawar,

are inconsistent with each other. The learned

Counsel submitted that the statement allegedly

recorded by A.S.I. Pawar demonstrates that the

facts, which would suit to the case of the

prosecution, are introduced in the said

statement, which were not stated by deceased

Sangita in her alleged dying declaration

allegedly recorded by the Naib Tahsildar.

9) Learned counsel further submitted that

though there is no evidence on record showing

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that accused No.3 was in the house when the

alleged incident happened, the learned Trial

Judge has erroneously held that the prosecution

has sufficiently proved that accused No.3 poured

kerosene on person of deceased Sangita and set

her on fire. Learned Counsel further submitted

that the Trial Court has failed in appreciating

that having regard to the weak physical condition

of accused No.3, it was impossible for her to

pour kerosene on person of deceased Sangita who

was well built. The learned Counsel further

submitted that deceased Sangita could have easily

over-powered the accused after noticing that she

was attempting to pour kerosene on her person and

could have avoided further mishap, if really it

was a case that kerosene was poured on her by

accused No.3.

10) The learned Counsel further submitted

that in so far as allegation of cruelty is

concerned, no cogent evidence has come on record

to substantiate the said allegation. The learned

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Counsel submitted that without there being any

corroborating evidence, the leaned Trial Judge

has implicitly relied upon the dying declaration

at Exhibit-44 recorded of the prosecutrix by the

Naib Tahsildar. On the above said grounds, the

learned Counsel prayed for setting aside the

impugned judgment and order and consequently to

acquit accused No.3 of the charges levelled

against her.

11) The learned Counsel for accused No.3 in

support of his arguments placed reliance on the

following two judgments, –

(i) Maruti s/o Raghunath Kendre Anr.
Vs. The State of Maharashtra – 2014 ALL
MR (Cri.) 3831;

(ii) Kunal Shivam Shejwal Anr. Vs. The
State of Maharashtra – 2015 ALL MR(Cri)
4370.

12) Shri S.G.Salgare, learned APP appearing

for State, supported the impugned judgment and

order. The learned APP submitted that the

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version of the prosecutrix in both the dying

declarations, one recorded by the Naib Tahsildar

at Exh.44 and another recorded by ASI – Mohan

Natha Pawar at Exh.37, is consistent and in both

the dying declarations, deceased Sangita had

named accused No.3 – Indubai to be a culprit.

The learned APP further submitted that accused

No.3 poured kerosene on person of deceased

Sangita and set her on fire is the core fact

involved in the present matter and in both the

dying declarations, the said fact has been stated

by deceased Sangita in the same manner.

13) The learned APP further submitted that

PW 4 – Sampatlal Bamb, who was working as Naib

Tahsildar at the relevant time at Ahmednagar, had

recorded the dying declaration of deceased

Sangita on 30th August, 2000 in the civil hospital

at Ahmednagar. The learned APP submitted that PW

4 – Sampatlal Bamb is an independent witness. The

learned APP further submitted that before

recording the statement of deceased Sangita, PW 4

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– Sampatlal Bamb had obtained opinion of the

medical officer present at civil hospital at

Ahmednagar about fitness of deceased Sangita to

give her statement. The learned APP further

submitted that PW 6 – Dr. Bapu Bhau Pote has

accordingly made an endorsement below the dying

declaration of deceased Sangita at Exh.44

recorded by PW 4 – Sampatlal Bamb. The learned

APP submitted that nothing has been brought on

record to disbelieve the testimony of PW 4 –

Sampatlal Bamb and PW 6 -Dr. Bapu Pote.

14) Relying on the judgment of the Hon’ble

Apex court in the case of Aashabai and Anr. Vs.

State of Maharashtra – (2013) 2 SCC 224, leaned

APP submitted that when there are more than one

dying declarations, each dying declaration has to

be separately assessed and evaluated and should

be assessed independently on its own merit. The

learned APP further submitted that even if the

statement of deceased Sangita at Exh. 37 recorded

by A.S.I. – Mohan Natha Pawar (PW 2) is kept

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aside, the dying declaration of deceased Sangita

at Exh. 44 alone is sufficient to prove the guilt

of the accused no.3. The learned APP further

submitted that the learned trial court has

correctly appreciated the evidence on record and

has rightly held accused No.3 guilty for the

offence punishable under Section 302 of IPC. The

learned Counsel submitted that no case is made

out by the appellant accused for causing any

interference in the well-reasoned judgment passed

by the learned Ad hoc Additional Sessions Judge.

He, therefore, prayed for dismissal of the

appeal.

15) We have given due consideration to the

submissions made on behalf of learned Counsel

appearing for the appellant and learned APP

appearing for the State. On perusal of the

impugned judgment, it is apparently revealed that

the learned Trial Judge has fully relied upon the

evidence brought on record by the prosecution in

the form of dying declarations of deceased

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Sangita.

16) Admittedly, there are two written dying

declarations on record, one recorded by PW 4 –

Sampatlal Bamb, the Naib Tahsildar, which is at

Exh. 44 and the other recorded by A.S.I. Mohan

Natha Pawar which is at Exh. 37. In fact, it is

a statement recorded of deceased Sangita by

A.S.I. Mohan Natha Pawar on the basis of which

the crime was registered against the accused

persons and the investigation was set in motion.

It is now well settled that such a statement can

also be considered as a dying declaration of

deceased person. Moreover, there is oral dying

declaration made by deceased Sangita to her

father viz. Subhash Rangnath Kaware (PW 1). In

all the three dying declarations, deceased

Sangita has implicated name of accused No.3, viz.

Indubai Ganpat Nehul. She has stated that her

mother in law, i.e. accused No.3 – Indubai poured

kerosene on her person and set her on fire.

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17) The dying declaration is the last

statement made by a person at a stage when he is

in serious apprehension of his death and expects

no chances of his survival. At such time, it is

expected that a person will speak truth and only

the truth. Normally in such situations, the

Courts attach the intrinsic value of truthfulness

to such statement. If such statement is made

voluntarily, if it is reliable and is not an

attempt by deceased to cover up the truth or

falsely implicate a person, then the courts can

safely rely on such dying declaration and it can

form the basis of conviction.

18) After deceased Sangita was admitted in

civil hospital at Ahmednagar on the next day of

it, her dying declaration was recorded by Naib

Tahsildar at Ahmedangar. During the course of the

trial, the Naib Tahsildar, who recorded the said

statement, was examined as a prosecution witness.

PW 4 – Sampatlal Bamb was the said Naib

Tahsildar. In his testimony before the Court, PW

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4 – Sampatlal has stated that on 29 th August,

2000, a report was received from Kotwali police

station about admission of deceased Sangita in

civil hospital at Ahmednagar due to 100% burn

injuries and a requisition was also received for

recording her dying declaration. The said report

was received at night hours. As has been further

deposed by PW 4, Tahsildar Ahmednagar deputed

him for recording dying declaration of deceased

Sangita and accordingly on 30th August, 2000 at

3.00 p.m. he had been to civil hospital,

Ahmednagar for recording the dying declaration of

deceased Sangita. He first met the incharge

medical officer and requested him to examine

deceased Sangita and give his opinion whether she

was conscious. The said medical officer examined

deceased Sangita and opined that she was

conscious meaning thereby that she was in a

position to give her statement. As has further

come on record in the evidence of said PW 4, he

then went to the Burn ward with the medical

officer and recorded the dying declaration of

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deceased Sangita in question and answer form. PW

4 has further deposed that he recorded the

statement as per the say of deceased Sangita and

then obtained her right hand thumb impression on

the said statement. He then signed the said

statement to evince that it was made before him.

He also obtained endorsement from the medical

officer that the patient was conscious. During

the course of his evidence, PW 4 filed on record

original dying declaration. He identified the

thumb impression of deceased Sangita on th said

dying declaration. During the course of the

evidence of PW 4 the dying declaration recorded

by him of deceased Sangita was held to have been

duly proved and it was, therefore, exhibited as

Exh. 44.

19) We have carefully perused the contents

of the dying declaration of deceased at Exh. 44.

We find it appropriate to reproduce herein below

the relevant portion of the said dying

declaration, which reads thus, –

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“15- FkksMD;kr gfddr % eks uanksbZ lqHkk”k dkdMs ;kaps ?kjkP;k
fHkarhuk ikVkps ik.kh ykxY;kus ufou ?kj cka/k.;klkBh R;kauh vkeps
dMs :-25 gtkjkph ekx.kh dsyh- R;kosGsl eh dkgh cksyys ukgh-
R;keqGs eks irh ukuklkgsc x.kir usgqy gs eyk lkj[ks ekjgk.k
djhr gksrs- R;k dkj.kkeqGs ekh lklw banwckbZ x.kir usgqy] uuan
csch lqHkk”k dkdMs] o eks uanksbZ] lqHkk”k y{e.k dkdMs ;kauh
pkS?kkauh feGqu eyk ekj.;kpk IykWu r;kj dsyk fn- 29-8-2000
jksth eks irh ukuklkgsc x.kir usgwy gs dkekoj fu?kqu xsys
R;kuarj ekh lklw] banwckbZ x.kir usgwy ;kauh LVksOg e/khy jkWdsy
vaxkoj Vkdwu dkMh vkswu vaxkoj Vkdyh o rh yxsp ckgsj iGwu
xsyh- o frus yksdkauk eh isVwu ?ksrys vls lkafxrys R;kuarj yksd
vkys R;kauh eyk fofoys o iqhy mipkjklkBh eyk uxjyk
vk.kys vkgs- ojhy loZ fyfgysyk etdqj eyk okpwu nk[kfoyk o
rks ekb;k lkafxrY;k izek.ksp fygysyk vkgs-

tckc iw.kZ kY;kph osG fnukad 30-8-2000 nqikjh 3
oktwu 20 fe-

le{k lgh fu’kkuh vaxBk
lgh@
¼,l-Mh-cac½ lkS- lafxrk ukuklkgsc usgwy ;kaP;k
uk;c rgf’kynkj] uxj mtO;k gkrkpk vls-

Pt. Concious
Sd/- xxx 30/8/2000
3.00 pm to 3.25 p.m.”

20) It is the matter of record that PW 2 –

Mohan Natha Pawar had also recorded statement of

deceased Sangita on 30th August, 2000 in the civil

hospital at Ahmednagar. In has come on record in

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the evidence of PW 2 – Mohan that at the relevant

time, he was attached to Pathardi police station

and on 30th August, 2000, he was directed to visit

civil hospital at Ahmednagar and record statement

of deceased Sangita, who was admitted there as a

burn case. PW 2 – Mohan has further deposed that

he reached to the civil hospital, Ahmednagar at

about 8.00 p.m. and enquired with the medical

officer whether deceased Sangita was in a

position to give her statement or not and

requested the said medical officer to examine

Sangita and to ascertain her fitness and to give

report accordingly. PW 2 further deposed that

the said medical officer examined Sangita and

told him that she was in a position to give her

statement. As has been further deposed by PW 2,

he then recorded the statement of deceased

Sangita as per her say and after the recording

was completed, read over the said statement to

deceased Sangita, who admitted the contents to be

correct. PW 2 has further deposed that he then

obtained the thumb impression of deceased Sangita

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on the said statement. It has also come on record

that he also obtained signature of the medical

officer on the said statement and also made his

endorsement. During the course of the evidence

of PW 2 – Mohan, the statement so recorded by him

of deceased Sangita was marked at Exh. 37. The

statement recorded by PW 2 of deceased Sangita

runs into about three pages. In the said dying

declaration also deceased Sangita had alleged

that her husband, mother-in-law, sister-in-law

and brother-in-law had demanded a sum of

Rs.25,000/- from her and were harassing her for

non-fulfillment of the said demand. In the said

statement also, deceased Sangita had alleged that

on 29th August, 2000, in the evening at about 4.30

p.m., her mother-in-law Indubai (Accused No.3)

poured kerosene in the iron stove on her person

and set her ablaze. Deceased Sangita had also

disclosed to PW 2 – Mohan Natha Pawar that after

setting her ablaze, accused No.3 ran out of the

house and made a scene that deceased Sangita has

set herself on fire.

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21) Learned Trial Court held both the dying

declarations to be trust-worthy and on the basis

of the facts, as were stated by deceased Sangita

in both the said dying declarations, held

accused No.3 guilty for knowingly and

intentionally causing death of deceased Sangita

by setting her on fire. As has been observed by

the learned trial Judge, while giving the

aforesaid two statements, deceased Sangita was in

a fit physical condition and the statements so

given were quite natural and trustworthy.

22) As noted by us herein above, the entire

thrust of the learned Counsel for the appellant

was on the point that the trial court has wrongly

relied upon the evidence in the form of dying

declarations. According to the learned Counsel,

the trial court could not have relied upon such

evidence since both the dying declarations are

not consistent with each other. We have

summarized the objections, as are raised by the

learned Counsel for the appellant, in the earlier

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paragraphs. We would like to deal with each of

the said objections separately and in the same

sequence they are raised.

23) The first objection, as has been raised

by the learned Counsel for the appellant, is that

when there are two dying declarations on record

and they are inconsistent with each other, in no

case, the conviction of the accused could have

been based on the basis of such dying

declarations. In order to support his said

contention, the learned Counsel relied upon the

judgment of the Division Bench of this Court in

the case of Maruti s/o Raghunath Kendre and Anr.

Vs. State of Maharashtra (cited supra).

24) We have carefully perused the entire

text of the said judgment. There cannot be a

dispute as about the law laid down in the

aforesaid judgment, however, the same would not

apply to the facts of the present case. Though

it is true that in the said case also, two dying

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declarations were there on record, as observed by

the Division Bench, there were major

discrepancies in both the dying declarations as

to the place of incident and as regards the case

for picking quarrel between the deceased and the

accused. Secondly, the thumb impression of the

deceased itself was noticed to be doubtful by the

Division Bench. It was observed by the Division

Bench that in view of the port-mortem report to

the effect that both the upper limbs of deceased

were burnt, bearing of thumb impression of the

deceased below the said dying declaration was

doubtful. In the aforesaid circumstances, the

Division Bench had quashed and set aside the

order of conviction passed by the court below.

25) The facts involved in the instant case

are altogether different and obviously,

therefore, the ratio laid down in the aforesaid

judgment may not apply to the facts of the

present case. Though it is true that in the

present matter also, there are two dying

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declarations, they are not inconsistent with each

other. Merely because the dying declaration at

Exh. 44 recorded by Naib-Tahsildar is precise and

short, whereas the dying declaration at Exh. 37

recorded by the A.S.I. Mohan Natha Pawar runs

into three pages and provides some more

particulars, it cannot be a ground for holding

these two dying declarations inconsistent with

each other. It has to be stated that in both the

dying declarations the core facts, as are stated

by deceased Sangita, are substantially same. In

both the dying declarations, deceased Sangita is

stated to have disclosed that there was a demand

of Rs.25,000/- from the accused persons. The

reason for such demand, as has been assigned in

both the dying declarations, is also the same.

It was stated by deceased Sangita that some

damage had been caused to the house of her

sister-in-law and for carrying out the repairs of

the said house, an amount of Rs. 25,000/- was

demanded by the accused persons from her. Both

the dying declarations contain the uniform

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accusation that Indubai (Accused No.3), poured

kerosene in the iron stove on person of deceased

Sangita and set her on fire. Both the dying

declarations are unvaried on the fact that after

pouring kerosene on person of deceased Sangita,

Indubai (Accused No.3) threw on person of

deceased Sangita an ignited match-stick and set

her ablaze. In both the dying declarations

deceased Sangita had further stated the congruent

fact that after setting deceased Sangita on fire,

accused No.3 ran out of the house and made a

scene that deceased Sangita had set herself on

fire. It is thus quite evident that in so far as

core and material facts relating to the cause of

death are concerned, are almost similar in both

the dying declarations. In the circumstances,

the judgment relied upon by the learned Counsel

for the appellant, in the case of Maruti Kendre

Anr.(cited supra) may not be of any help for

appellant No.2.

26) One more judgment was relied upon by the

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learned Counsel that too of the Division Bench of

this court in the case of Kunal Shivram Shejwal

and Anr. Vs. State of Maharashtra (cited supra).

In the said matter also, there were two dying

declarations, however, material improvements and

variations were noticed in the subsequent dying

declaration and in the circumstances, it was held

by the Division Bench that a deliberate attempt

was made by the prosecution to rope in other

accused, which were not named in the earlier

dying declaration. Moreover, in the oral dying

declaration given by deceased in the said case,

she had involved husband, mother-in-law, sister-

in-law and her nephew, whereas in the written

dying declaration, the accusations were only

against the mother-in-law. In the facts of the

present case, the aforesaid judgment also,

therefore, may not apply.

27) The another objection, which with equal

vehemence was pressed by the learned Counsel for

the appellant was that of improbability of the

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27 Cri.Appeal 7/2003

thumb impression below the dying declarations

alleged to be of deceased Sangita. As was argued

by the learned Counsel, having considered the

fact that deceased Sangita had burns to the

extent of 99%, it was difficult nay impossible to

get affixed the thumb impression of the deceased

below the dying declarations. It was further

contended by the learned Counsel that from the

evidence on record, serious doubts are also

raised whether at the relevant time, deceased

Sangita was able to speak so as to record her

dying declarations.

28) Having carefully considered the evidence

on record, we do not find any substance in both

the aforesaid objections. It is true that

deceased Sangita had received extensive burn

injuries and its percentage, as was stated in the

post-mortem examination report (Exh. 46) was 99%.

The question, therefore, arises whether the

percentage of burns suffered, can be a

determinative factor to affect the credibility of

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28 Cri.Appeal 7/2003

the dying declarations and the improbability of

its recording. The similar question had fallen

for considered before the Hon'ble Apex court in

the case of P.V.Radhakrishna Vs. State of

Karnataka - A.I.R. 2003 (SC) 2859. The Hon'ble

Apex court has held in the said matter that there

is no hard and fast rule of universal application

in this regard. Much depends upon the nature of

the burn, part of the body affected by the burn,

impact of the burn on the faculties to think and

convey the idea or facts coming to mind and other

relevant factors. Percentage of burns alone

would not determine the probability or otherwise

of making dying declaration.

29) In the instant matter, as has come on

record, before recording the statement of

deceased Sangita by PW 4 - Sampatlal Bamb,

deceased Sangita was examined and certified to be

fit for giving her statement by Dr. Bapu Bhau

Pote (PW 6). As has been deposed by PW 6 - Dr.

Pote, at the relevant time, he was in the Burn

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29 Cri.Appeal 7/2003

Ward when PW 4 arrived there for the purpose of

recording the dying declaration of deceased

Sangita. He has further deposed that he then

examined deceased Sangita clinically and opined

that she was normal and able to give her

statement. Dr.Pote has further deposed that PW 4

thereafter recorded the statement of deceased

Sangita and he was throughout present when such

statement was being recorded. Dr. Pote has

further deposed that after recording of the

statement was completed, he again examined

deceased Sangita and opined that she was normal.

Dr. Pote has also deposed that accordingly he had

made an endorsement on the dying declaration so

recorded of deceased Sangita.

30) It was sought to be canvassed by the

learned Counsel for the appellant that Dr. Pote

in his cross-examination has clearly admitted

that he had not mentioned on the dying

declaration at Exh. 44 that the patient was in a

position to give statement. There appears no

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30 Cri.Appeal 7/2003

much substance in the objection so raised in view

of the immediate further statement made by Dr.

Pote that making of such endorsement on the dying

declaration is not mandatory requirement. It is

further significant to note that Dr. Pote

candidly denied the suggestion that in case of

99% burns, voice of the patient becomes feeble.

Dr. Pote has also denied the suggestion that

tongue, mouth and lips of the patient, i.e.

deceased Sangita, were highly affected due to the

burns. It is pertinent to state that to a

question asked to Dr. Pote by the Sessions Court,

he had answered that he had mentioned that the

patient was conscious, oriented and speech

normal. Dr. Pote has further clarified that

`oriented' means mental condition of the patient

was normal. Dr. Pote has also denied the further

suggestion that in case of 99% burns, there is

always mental affection, possibility of weakness

and confused intellectual power etc.

31) An another attempt was made to suggest

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31 Cri.Appeal 7/2003

Dr. Manoj Ghuge (PW 5), who had conducted the

post-mortem on the dead body of deceased Sangita,

that the mouth and tongue of deceased Sangita

were affected due to burn; Dr. Manoj Ghuge,

however, had denied the said suggestion. Dr.

Ghuge had further clarified that in case of

facial burns, it depends upon particular case

that uttering of a word becomes difficult.

Further, though it was vehemently argued by the

learned Counsel for the appellant that the

percentage of burn injuries caused to deceased

Sangita was 99% and as such it was impossible to

obtain the thumb impression of deceased Sangita

below the dying declaration, the contention so

raised also deserves to be rejected. In his

testimony before the court, Dr. Pote (PW 6) has

deposed that after PW 4 completed the recording

of the dying declaration of deceased Sangita, he

made endorsement on the said statement at 3.25

p.m. Dr. Pote has further deposed that `then

thumb impression of right-hand of the patient was

obtained'. It is thus evident that the thumb

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32 Cri.Appeal 7/2003

impression was obtained in presence of Dr. Pote.

In the cross-examination of Dr. Pote, nothing has

been asked to him as about the fact so deposed by

him in his examination-in-chief that the thumb

impression of the right-hand of the patient was

obtained on the dying declaration. Secondly, the

defense did not put any question either to the

Executive Magistrate Mr. Sampatlal Bamb or to Dr.

Pote or to Dr. Ghuge, with respect to whether

any part of thumb had skin on it or not as in

both the dying declarations ridges and curves

had been clearly found to exist.

32) In the above circumstances, there seems

no reason to disbelieve the testimony of PW 4 -

Sampatlal Bamb, corroborated by PW 6 - Dr. Pote,

that, the thumb impression of the right hand of

deceased Sangita was obtained below the dying

declaration. Similarly, the objection that

deceased Sangita was not in a fit physical and

mental condition at the time of giving her

staement, has also to be rejected.

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33) One more objection was raised by the

learned counsel for the appellant that the trial

court has failed in considering that the story

allegedly stated by deceased Sangita in her dying

declaration that accused No.3 poured kerosene on

her person and then set her on fire, was

difficult to be believed having regard to the

respective physical conditions of deceased

Sangita and accused No.3. The learned Counsel

pointed out that PW 1 - Suhas Rangnath Kaware,

father of deceased Sangita has admitted in his

cross-examination that accused No.3 was

physically weak, whereas deceased Sangita

possessed a strong body. The learned Counsel

submitted that in the circumstances it appears

improbable that accused No.3 alone could have

poured kerosene on person of deceased Sangita and

set her ablaze. The learned Counsel had further

argued that deceased Sangita could have easily

over-powered accused No.3 after it was noticed by

her that accused No.3 has poured kerosene on her

person, before she ignites the match-stick and

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34 Cri.Appeal 7/2003

applies the same to the apparels on her person

drenched with kerosene.

34) We are, however, not impressed with the

submission so made. Firstly, the constitution of

body alone may not be a decisive factor. What

will be more important is determination to carry

out any particular act. From the evidence on

record, there is reason to believe that accused

No.3 was determined to set deceased Sangita on

fire. Further as is revealing from the record

and as has been specifically stated by deceased

Sangita in her dying declarations immediately

after pouring kerosene on her person, accused

No.3 threw the ignited match-stick on her person

and ran out of the house. In the circumstances,

there is reason to believe that it could not have

become possible to deceased Sangita to resist the

attack from accused No.3 or to overpower her.

Moreover, on such an objection, the prosecution

case which otherwise appears to be trust-worthy,

cannot be rejected or disbelieved.

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                                   35                 Cri.Appeal 7/2003

35) From the discussion made as above, thus

there appears no much substance in the grounds as

are raised on behalf of the appellant in

exception to the impugned judgment and order.

Though in the instant matter, two dying

declarations were recorded of deceased Sangita,

one by the Executive Magistrate and another by

the A.S.I. both the dying declarations are

consistent with each other in all material

particulars and both the dying declarations

appear to have been made by the deceased

voluntarily.

36) As has been elaborately discussed by us

herein above, deceased Sangita was in fit

physical condition while giving her both the

aforesaid dying declarations. Though the dying

declaration recorded by A.S.I. Mohan Natha Pawar

at Exh. 37, is more exhaustive and runs into

three pages, that may not be a ground for

rejecting the said dying declaration in view of

the fact that the fundamental facts, which go to

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36 Cri.Appeal 7/2003

the root of the matter, are unvaried in both the

dying declarations.

37) It is well-settled that where the dying

declaration is recorded by a Magistrate and there

is no infirmity in recording of the said dying

declaration, the dying declaration so recorded

inspires confidence. In the instant matter, Naib

Tahsildar - Sampatlal Bamb has recorded the dying

declaration of deceased Sangita at Exh. 44. As

was deposed by him, he was specifically deputed

for the purpose of recording the dying

declaration of deceased Sangita by Tahsildar

Ahmednagar. He had accordingly proceeded to the

hospital and recorded the statement of deceased

Sangita in presence of the doctor. As has come

on record, before recording of her statement,

deceased Sangita was certified to be fit for

giving her statement by medical officer Dr. Pote

(PW 6). The statement was recorded in the form

of questions and answers. From the nature of the

answers the deceased has given, it cannot be said

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37 Cri.Appeal 7/2003

that she had not understood the questions and has

not given proper answers. It has to be therefore

held that the mental capacity of deceased Sangita

was sound and she was capable of giving answers

to the questions put forth by the Tahsildar.

Moreover, as noted herein above, Dr. Pote in an

answer to the question put to him by the Sessions

Court, had clarified that deceased Sangita was

oriented meaning thereby that her mental

condition was sound. PW 6 Dr. Pote was

throughout present during the course of recording

of the said statement. Dr. Pote has also put his

endorsement about the fitness of deceased Sangita

for giving her statement on the dying declaration

recorded by the Tahsildar. The thumb impression

of deceased Sangita was obtained below the said

declaration in presence of Dr. Pote. PW 4 -

Sampatlal Bamb had also put his signature below

the said statement. We have, therefore, no

hesitation in holding that the dying declaration

recorded by the Executive Magistrate, cannot be

assailed on any germane ground. The Magistrate

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38 Cri.Appeal 7/2003

being a dis-interested witness and a responsible

officer and there being no circumstance or

material to suspect that the Magistrate had any

animus against accused or was in any way

interested for fabricating a dying declaration,

question of doubt on the declaration recorded by

the Magistrate does not arise. In the

circumstance, even if the dying declaration at

Exh. 37 recorded by the A.S.I. Mohan Natha Pawar

is kept out of consideration, the fact remains

that in the dying declaration at Exh.44, deceased

Sangita had clearly implicated accused No.3 to be

the culprit and had made a specific allegation

against her that it was accused No.3, who poured

kerosene on her person and set her ablaze.

38) It is not in dispute that deceased

Sangita suffered death because of the burn

injuries. Dr. Manoj Ghuge (PW 5), who had

conducted post mortem examination of the dead

body of deceased Sangita, has specifically

deposed that deceased Sangita died because of the

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39 Cri.Appeal 7/2003

cardiac respiratory failure due to septicemic

shock due to 99% burns. Dr. Ghuge has also

deposed that the injuries as are mentioned in

column No.17 of the post mortem report (Exh.46)

were ante-mortem and sufficient to cause death of

deceased Sangita in the ordinary course of

nature. From the evidence on record, there has

remained no doubt that deceased Sangita suffered

a homicidal death. A feeble attempt was made to

suggest P.S.I. Rajaram Atmaram Patil (PW 3) the

Investigating Officer that it was transpired in

the investigation that deceased Sangita suffered

an accidental death and it was not the case of

murder. Of course, the said suggestion was

flatly denied by PW 3 - Rajaram Atmaram Patil.

Except the suggestion, as above, nothing has been

brought on record by the accused so as to draw

any inference even remotely that there was any

possibility of deceased Sangita suffering an

accidental death. Neither any such suggestion

was given to PW 1 - Suhas Rangnath Kaware father

of deceased Sangita nor to Dr. Manoj Ghuge (PW

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40 Cri.Appeal 7/2003

5), who had conducted the post mortem examination

and not also to any other witness examined by the

prosecution. Though one Vishwas Nehul was

examined by the accused, as a defence witness,

even nothing has been brought on record through

his evidence, suggesting that deceased Sangita

accidentally got burnt and that the allegation

made against accused No.3 - Indubai that she

poured kerosene on person of deceased Sangita and

set her ablaze, was a false allegation. The

accused admittedly did not take any defence that

deceased Sangita committed suicide. Moreover, in

the dying declarations given by deceased Sangita

to the Executive Magistrate and to the police,

she has made specific allegations that accused

No.3 - Indubai poured kerosene on her person and

set her ablaze. It has to be noted that in both

the dying declarations it was also stated by

deceased Sangita that after setting her on fire,

accused No.3 ran out of the house and attempted

to create a false scene that deceased Sangita set

herself her on fire.

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39) From the evidence, which has been

brought on record, the prosecution has beyond

reasonable doubt proved that deceased Sangita

suffered a homicidal death. As elaborately

discussed by us herein above, the prosecution has

successfully proved both the dying declarations

of deceased Sangita, one recorded by the

Executive Magistrate and other by Asstt. Sub

Inspector. As noted by us, both the dying

declarations are found to be trust-worthy and

inspire confidence. Both the dying declarations

have been duly proved by the prosecution. The

objections, as were raised on behalf of the

appellant as about the validity and

trustworthiness of the said dying declarations

have been rejected by us by recording our reasons

therefor. Law is well-settled that dying

declaration can be the sole basis for conviction.

We deem it appropriate to reproduce herein below

some of the observations made in this regard by

the Hon'ble Apex court in the case of P.V.Radha

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42 Cri.Appeal 7/2003

Krishna Vs.State of Karnataka (cited supra),

which read thus, -

" The situation in which a person
is on deathbed is so solemn and
serene when he is dying that the
grave position in which he is
placed, is the reason in law to
accept veracity of his statement.
It is for this reason the
requirements of oath and cross-

examination are dispensed with.

Besides, should the dying
declaration be excluded it will
result in miscarriage of justice
because the victim being generally
the only eye-witness in a serious
crime, the exclusion of the
statement would leave the Court
without a scrap of evidence. 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

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43 Cri.Appeal 7/2003

confidence of the Court in its
correctness. The Court has to be on
guard that the statement of
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
rule of prudence."

40) After having considered the entire

evidence on record, we have no hesitation in our

mind that the prosecution has beyond reasonable

doubt proved that appellant No.2, i.e. original

accused No.3, knowingly and intentionally caused

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44 Cri.Appeal 7/2003

death of deceased Sangita by pouring kerosene on

her person and setting her ablaze and has thus

committed the offence punishable under Section

302 of IPC. It has to be stated that deceased

Sangita was only of the age of 20 years at the

relevant time and got married with original

accused No.1 two years prior to the said

incident. It does not appear to us that the

trial court has committed any error in holding

appellant No.2 - Indubai Ganpat Nehul guilty for

the offence punishable under Sections 302, 498A

and 323 of IPC. We have not indulged in making

any elaborate discussion as about the conviction

of accused No.3 for the offences punishable under

Section 498A and 323 of IPC for the reason that

the averments in the dying declarations of

deceased Sangita sufficiently constitute both the

aforesaid offences also. The appeal being devoid

of any merit deserves to be dismissed and is

accordingly dismissed. Appellant No.2 - Indubai

Ganpat Nehul shall forthwith surrender before the

Trial Court to undergo remaining sentence. The

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45 Cri.Appeal 7/2003

appellant-accused be given set-off under Section

428 of the Cr.P.C of the period already

undergone, if any.

             (P.R.BORA)            (SUNIL P.DESHMUKH)
JUDGE JUDGE

bdv/
fldr 12.2.18

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