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IN THE HIGH COURT OF BOMBAY AT AURANGABAD
SUNIL P. DESHMUKH, P.R. BORA, JJ.
Nanasaheb & Another - Petitioner
Versus
The State of Maharashtra - Respondent
Criminal Appeal No. 7 of 2003
Decided On : 25-04-2018
It was case prosecution that accused poured kerosene on person of deceased at about at her house and set her on fire - Deceased received extensive burn injuries - She was immediately removed to hospital but could not survive and succumbed to burn injuries after about four days of alleged occurrence - While in Civil Hospital at statement was recorded by Mohan was then working as at Police station - On basis statement so given by deceased crime was registered against four persons for offences punishable Sections and investigation was set in motion - Offence was registered against husband brother in law mother in law and wife brother in law of deceased – Held, Besides should dying declaration be excluded it will result in miscarriage justice because victim being generally only eyewitness in serious crime exclusion of statement would leave Court without scrap of evidence - Though dying declaration is entitled to great weight it is worthwhile to note that accused has no power of cross examination - Such is essential for eliciting truth as an obligation of oath could be - This is reason Court also insists that dying declaration should be of such nature as to inspire full confidence Court in its correctness - Court has to be on guard that statement deceased was not as result of either tutoring or prompting or product imagination - Court must be further satisfied that deceased was in fit state mind after clear opportunity to observe and identify assailant - Once Court is satisfied that 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 dying declaration cannot form sole basis of conviction unless it is corroborated - Rule requiring corroboration is merely rule of prudence - After having considered entire evidence on record court have no hesitation in our mind that prosecution has beyond reasonable doubt proved that appellant - Original accused knowingly and intentionally caused death of deceased by pouring kerosene on her person and setting her ablaze and has thus committed offence punishable Section - It has to be stated that deceased was only age of years at relevant time and got married with original accused two years prior to said incident - It does not appear to us that trial court has committed any error in holding appellant guilty for offence punishable Sections – Court have not indulged in making any elaborate discussion as about conviction of accused offences punishable Section for reason that averments in dying declarations of deceased sufficiently constitute both aforesaid offences also - Appeal being devoid of any merit deserves to be dismissed and is accordingly dismissed - Appellant shall forthwith surrender before Trial Court to undergo remaining sentence – Order accordingly
P.R. BORA, J.
1. Original accused No.1 and 3 in Sessions Case No.175/2000 decided by the Court of 3rd Additional Sessions Judge, at Ahmednagar on 29.11.2002, had preferred present appeal 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 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 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 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 grounds. Learned Counsel submitted that the learned Trial Judge has given undue weightage to the dying declarations
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