IMPORTANT POINT
Conviction can based on a dying declaration inspiring confidence.

JUDGMENT

Uday Umesh Lalit, J.

1. This appeal challenges the judgment and order dated 26.04.2007 passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Appeal No.403 of 1991 whereby it set aside the acquittal of the present appellants and convicted them under Section 302 read with Section 34 IPC and sentenced them to suffer imprisonment for life and to pay a fine of Rs.1,000/-, in default whereof to suffer rigorous imprisonment for six months.

2. PW-1 Sukhdeo and the present appellants are brothers and they were residing separately but in adjacent houses. PW-1 Sukhdeo had sold three lambs. The appellants were demanding their share in the proceeds from PW-1 Sukhdeo and his wife Sushila. Refusal to give them any share led to a quarrel and the appellants who had consumed liquor, allegedly threatened Sushila that she would be set on fire. Sushila had therefore lodged a report (Ext.30) on 16.10.1990 with the Police. On the next day i.e. on 17.10.1990 at about 4.30 pm while PW-1 Sukhdeo had gone to a grocery shop, he heard noise that a lady was burning. When he came rushing, he found Sushila in flames in front of his house. He poured water and doused the fire. Sushila told PW-1 Sukhdeo that appellant no.2 had poured kerosene on her while appellant no.1 was holding her and that she was thus set afire. The Police reached the spot and she was taken to Ural Police Station. Sushila made an oral report to PW-12 PSI Deomurar adverting to the dispute and the quarrel of the previous day and stated that the appellants had again made a demand for money obtained from the sale of lambs, had quarreled with her and later set her afire. As per her version, the incident was witnessed by one Kusum and Motiram.

3. This oral report was reduced to writing with thumb impression of Sushila (Ext.41), based on which Crime No.109 of 1990 was registered against the appellants. Sushila was removed to the hospital where, after taking opinion of PW-7 Dr. Ravindra Kumar as regards her fitness to record a statement, a dying-declaration Ext.34 was recorded by a Special Executive Magistrate in which Sushila reiterated that the appellants had set her on fire. Sushila expired in the hospital five days later i.e., on 21.10.1990. PW-9 Dr. Siraj Ansari conducted post-mortem and found the cause of death to be septicemia with shock due to 91% burn injuries.

4. The appellants were tried for having committed the murder of Sushila in Sessions Trial No.47 of 1991 in the Court of the Additional Sessions Judge, Akola. The prosecution examined 13 witnesses and principally relied on three dying declarations, the first one being oral dying declaration to PW1 Sukhdeo, the second being Ext.41 as aforesaid while the 3rd one being Ext.34 which was recorded by the Special Executive Magistrate. Though PW-1 Sukhdeo supported the case of the prosecution, PW-4 Motiram did not and was declared hostile. Kusum was not examined as witness. The trial court was of the view that none of the prosecution witnesses who had accompanied PSI Devmurar had stated that the statement of Sushila was recorded on the spot. As regards other dying declaration Ext.34, the trial court found that the Doctor had not ascertained whether Sushila was in a position to talk, nor had the Executive Magistrate spoken to her before recording her statement. It was observed that while this dying declaration was being recorded, PW-1 Sukhdeo was with her since the incident and thus he had ample opportunities to tutor her. The trial court gave benefit of doubt to the appellants and acquitted them of the charge leveled against them by its judgment and order dated 10.07.1991.

5. The State being aggrieved, preferred Appeal before the High Court. The High Court on re-appreciation of the evidence found that the prosecution had brought home the case against the appellants, that the trial court had not considered the dying declarations vis-à-vis the circumstances appearing on the record in proper perspective and tha