IMPORTANT POINT
When a contradictory and inconsistent stand is taken by deceased in different declaration they should not be accepted on their face value.

JUDGMENT

S.B. Sinha, J. —

1. This appeal is directed against the judgment and order dated 13.07.2005 passed by a Division Bench of the High Court of Judicature at Bombay, Bench at Aurangabad in Criminal Appeal No. 190 of 1995 whereby and whereunder the appeal preferred by appellant herein from a judgment and order dated 28.6.1995 in Sessions Case No.115 of 1992 convicting him for commission of an offence punishable under Section 302 of the Indian Penal Code (for short, “the IPC”) and sentencing him to undergo imprisonment for life and pay a fine of Rs.2,000/- and, in default, to undergo R.I. for one year, has been dismissed.

2. Janabai, the deceased, was the wife of appellant. They were married in the year 1985. They were having two daughters. She suffered a burn injury during the night between 03.09.1991 and 04.09.1991. She was sleeping at her house. However, the place where appellant was sleeping is in dispute. According to the First Information Report, the appellant was sleeping with the deceased and two daughters whereas in the first dying declaration made by the deceased, he is said to have been sleeping in a nearby school.

3. Indisputably, she suffered burn injuries. Upon hearing the screams for help, some persons from the locality gathered. They tried to extinguish the fire. She was thereafter removed in a bullock cart to a hospital of one Dr. Warke. From the said hospital she was taken to Municipal Hospital at Bhusawal as her condition became precarious. On or about 4.9.1991, she gave a dying declaration before a police constable, Savda, which reads as under:

“I state that I stay with my husband, mother-in-law at the above mentioned place and earn our livelihood by doing labour work. I have two daughters and my maiden home is at Jalgaon Pimprala. I had no dispute against my husband, mother-in-law, brother-in-law and I was living happily with my family. Today, on 04.09.1991 in between 12.30 to 1.00 O’clock in the night time my mother-in-law, brother-in-law, sister-in-law were sleeping inside the house. My husband had gone to the school to sleep. I suddenly started felt cold therefore, I got up and to get some warmth lighted a fore and when I got up while making myself warm, part of my saree suddenly was lit and I started shouting loudly that time my brother-in-law, mother-in-law and neighbours Bhagwat Chindu Koli and others came running and they by putting a blanket on me extinguished the fire thereafter after a while my husband Samadhan Dhudku Koli came running and as I was extensively burnt I was taken to Dr. Warke by putting me in the bullock cart. I am burnt by chest, face, waist, abdomen and my back is totally burn. My both the hands are also burnt. I have not been burnt by anybody from the house nor I have burnt myself. I have no suspicion on anybody. While giving the statement I am fully conscious and whatever I have stated is correct.”

The said dying declaration was marked as Exhibit 48.

4. It stands admitted that another dying declaration was recorded by a Judicial Magistrate on the same day. The said dying declaration, however, for reasons best known to the State was not produced. An application for bringing the said dying declaration on record was filed on behalf of the appellant, which was rejected by the learned Sessions Judge. The High Court has also affirmed the said view. We would advert to the said question a little later. It also stands admitted that on or about 6.9.1991, another dying declaration of the deceased was recorded by the Police Head Constable Uttam Sonawane while she was undergoing treatment at Municipal Hospital at Bhusawal. She, in the said dying declaration, attributed the act of commission of the said offence on her husband, the appellant herein, stating:

“I, state on asking that my maiden home is Pimprala, Tq. Jalgaon and I got married about 6 years before to Samadhan Dhudku Koli of Rangaon, Tq. Raver and from him I have two daughters and their names are Jyoti aged 5 years and Deepali