The central legal point established in the judgment is the requirement for a dying declaration to be made by the deceased in a conscious state of mind and to be otherwise cogent, reliable, and free from infirmities to be admissible as substantive evidence.

1. The appellant is aggrieved by the judgment and order dated 24.8.2004, passed by the 2nd Adhoc Additional Sessions Judge, Nagpur, in Sessions Trial 162 of 2003, by and under which, the appellant (hereinafter referred to as “the accused”) is convicted of offence punishable under section 304 Part II of the Indian Penal Code (“IPC” for short) and is sentenced to suffer simple imprisonment for five years and to payment of fine of Rs. 5000/-.

2. Heard Shri R.M. Daga, the learned counsel for the accused and Smt. Ritu Kaliya, the learned Additional Public Prosecutor for the respondent/State.

3. The learned counsel for the accused submits, that the judgment and order impugned is manifestly erroneous and militates against the weight of evidence on record. The conviction is, substantially if not entirely, based on dying declaration dated 4.1.2003 recorded by Smt. Shewantabai Rahate (P.W.6). The said dying declaration ought to have been discarded as wholly unreliable, is the submission. The dying declaration is not in a question and answer form, the doctor, who is said to have endorsed the fitness of the injured Vaishali to give the statement is not examined, the dying declaration purports to bear the left toe impression of the injured which reveals clear ridges and curves which renders the dying declaration suspect since Vaishali concededly suffered 17% burns on the left limb and 18% burns on the right limb, the dying declaration falls foul of the enunciation of law of the Hon’ble Apex Court in Shaikh Bakshu & Others Vs. State of Maharashtra, (2007) 11 Supreme Court Cases (Cri.)269 and of the Division Bench of this Court in Abdul Riyaz Abdul Bashir Vs State of Maharashtra, 2012 ALL MR (Cri.) 2188 and the contents are inconsistent, is the submission.

4. The learned Additional Public Prosecutor, with usual fairness, does not dispute that if the dying declaration Exh. 23 is kept out of the consideration, the conviction of the accused would be unsustainable. However, the learned Additional Public Prosecutor Ms. Ritu Kaliya contends that the dying declaration Exh. 23 is implicitly reliable and confidence inspiring and is correctly found to be trustworthy by the learned Sessions Judge.

5. Before I venture to consider the dying declaration Exh. 23, I may consider the depositions of the prosecution witnesses who have been examined to prove that the deceased Vaishali was subjected to cruelty. Be it noted that the accused Karuna Ramteke, who is the mother in law of the deceased, faced trial alongwith Damodar, the husband of the deceased, for having committed offence punishable under section 498-A read with section 34 of IPC, section 302 and 120B of IPC. Damodar is acquitted of all the offences. The accused is acquitted of offences punishable under section 498-A, 120-B and 302 of IPC and is convicted of offence punishable under section 304 part II of IPC.

6. PW 1 - Mukesh Meshram, is witness to the spot panchanama, and duly proves the spot panchanama Exh. 8. PW 2 – Kailash Kawale who is the father of the deceased and did not support the prosecution. Permission under section 154 of the Indian Evidence Act was sought to put questions to the said witness in the nature of cross-examination. The learned Additional Public Prosecutor has extracted certain admissions in the cross-examination of PW 2 – Kailash, inter alia an admission that Vaishali disclosed in the hospital that a day prior to the incident, accused Damodar illtreated Vaishali under the influence of liquor. However, the said witness has denied the suggestion that in the statement given to the police he stated that the accused mother in law filthily abused Vaishali and that Vaishali was pushed by the accused with the result that Vaishali fell on the burning stove. In the cross-examination on behalf of the accused, PW 2 admits that Vaishali and accused Damodar were living a happy married life.

PW 3 - Rajkumar Madame, who is a neighbour of the accused Damodar, is examined to prove that h