judgment

Dr. ARIJIT PASAYAT, J. —

1.Leave granted.

2.Challenge in this appeal is to the judgment of a Divison Bench of the Bombay High Court, Aurangabad Bench. Conviction of the appellants under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the ‘IPC’) was confirmed while setting aside the conviction and sentence relatable to offence punishable under Section 498-A IPC read with Section 34 IPC. All the appellants were convicted by learned 1st Additional Sessions Judge, Parbhani in Sessions Trial No. 214/2001.

3.Prosecution version as unfolded during trial is as under:

Rubina (hereinafter referred to as ‘deceased’) was married to appellant No.1 Sk. Bakshu about 8 days prior to the alleged incident, which took place on 19.8.2001 at about 4 p.m. in the house of the appellants. While the deceased was staying in the house of her in-laws, the appellant No.2-Janubai Shakur, sister in law of the deceased and appellant No.3 Safirabi Sk. Wahed, mother in law of the deceased caught hold of her and her husband, the appellant no.1 Sk. Bakshu by pouring kerosene on her person, set Rubina on fire. The deceased suffered burn injuries. While she was burning, her father in law extinguished the fire by pouring water on her. Thereafter, the neighbours had brought the deceased to the Civil Hospital, Parbhani. Court witness Dr. Bhagwan Dhutmal was on duty and after examining the patient, he started treatment. Radhakishan Katare (PW-3), who was working as ASI in Police Out Post in General Hospital. Parbhani, secured the MLC Certificate from the medical officer concerning the deceased Rubina, which is at Exhibit 13. After ascertaining from the medical officer regarding consciousness of the patient to make a declaration, Radhakishan (PW-3) recorded statement of the deceased on the same day i.e. 19.8.2001 at 6 p.m. The said dying declaration is at Exhibit 31. Thereafter, a letter was addressed to PW1- Naib Tahsildar for recording dying declaration of Rubina and on receipt of intimation, Narhari Pandit. Naib Tahsildar (PW-1), proceeded to the hospital. After ascertaining the physical and mental condition of the patient from the medical officer, the Naib Tahsildar recorded statement of Rubina at 7-15 p.m. which is at Exhibit 26. The medical officer Dr. Bhagwan endorsed on both the dying declarations to the effect that the patient was conscious oriented in time and space and was able to make a statement. The first dying declaration (Exh.31) was recorded between 6 p.m. to 6-10 p.m. and the second dying declaration (Exh.26), which was recorded by Naib Tahsildar was between 7-15 to 7-30 p.m. on the same day i.e. 19.8.2001. The deceased died at 8-30 p.m. on 19.8.2001. According to the post mortem report, the deceased had suffered 67% burn injuries. The post mortem of the deceased was conducted by Dr. Ashok Janapurkar (PW-2). The post mortem report is at Exhibit 28. The cause of death, according to the medical officer, was due to cardio respiratory failure due to superficial deep 66% burns. Anil Gaikwad (PW-6) conducted the investigation of the case. He had drawn spot panchnama and recorded statements of witnesses. All the appellants were arrested on 20.8.2001. The clothes of appellants were also seized. The seizure panchnamas are at Exhibits 42, 43 and 44. On 21.8.2001, viscera and articles seized on the spot were sent to Chemical Analyser, whose report is Exhibit 15. In viscera, no poison was detected. Kerosene was detected on the clothes of accused, which were seized. After completion of investigation, the charge-sheet was filed. The case was committed by JMFC, Parbhani, to the Court of Sessions for trial. The charges in Exhibit 10 were framed and the appellants were tried before the Court, to which they pleaded not guilty and came to be tried.

The prosecution examined 6 witnesses. In their statement u/s 313 of Cr.P.C. the appellants denied the incident in question and alleged that the witnesses were demanding money and for that reason