M.G. Giratkar, J.

The State of Maharashtra taken exception to the decision of acquittal of accused persons in Session Case No. 61/2008 passed by Adhoc Additional Sessions Judge, Yavatmal dated 29-11-2008.

2. The case of the prosecution (State/appellant) against the accused/respondents is as under.

(i) Deceased Manisha married with son of accused nos. 1 and 2 before 5 years of the incident. After the marriage, she was residing with her husband in joint family consisting of father-in-law, mother-in-law and brother-in-law. Deceased was having one son Shubham from her husband. One and half years before the incident, deceased along with her husband was living in separate room of same house because of strained relations with her father-in-law and mother-in-law. Her husband was mason by profession.

(ii) On 25-11-2007 at about 10.00 a.m., she told her father-in-law to ask tenant Shri Waghmare to keep the door of first floor open because she wanted to keep some articles on the upper floor. Her father-in-law (accused no. 1) quarreled with her. He told her as to why she was talking with him. Her husband had gone to Mumbai. Thereafter her mother-in-law and father-in-law, both came into room. They abused her. Her mother-in-law caught hold her hands, father-in-law poured kerosene on her person and set her on fire by igniting matchstick. Deceased started burning. Both accused closed door from inside and went in another room. Her son started crying loudly being affected with heat. Therefore, her mother-in-law and father-in-law again came back to her room and took her son with them. They extinguished fire by pouring water. She was taken to the hospital by her father-in-law, mother-in-law and the persons from the locality who had gathered.

(iii) Medical Officer informed the duty constable about the condition of patient. Requisition was issued to Naib Tahsildar Shri Rajgadkar to record the dying declaration. Shri Rajgadkar requested Medical Officer Shri Bhuyar to examine the patient. After getting certificate of fitness, Shri Rajgadkar has recorded the dying declaration of deceased (Exhibit 33).

(iv) After receipt of dying declaration recorded by Shri Rajgadkar, PSI Rathod registered the crime vide FIR, Exhibit 50. Thereafter PSI Rathod himself went to the Government Hospital, Yavatmal on 26-11-2007 at about 10.00 p.m. and recorded statement of deceased Manisha vide Exhibit 51.

(v) Deceased Manisha died on 2-12-2007. Her dead body was sent for postmortem. As per the postmortem report, opinion as to the cause of death was given as “shock due to infected burn”. Statements of witnesses were recorded. Spot panchanama, seizure panchanamas were drawn by PSI Rathod. After complete investigation, chargesheet was filed before the Chief Judicial Magistrate, Yavatmal who in turn committed the case to the Court of Sessions for trial.

(vi) Trial Court framed charge at Exhibit 8 against both the accused for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. Prosecution has examined 6 witnesses. At the conclusion of trial, both the accused came to be acquitted, hence, the present appeal by the State.

3. Heard learned Additional Public Prosecutor Shri S. J. Kadu for the State/appellant. He has submitted that evidence of parents of deceased is well corroborated by dying declaration, Exhibit Nos. 33 and 51. Learned trial Court not considered evidence properly and wrongly acquitted both the accused, at last, prayed to allow the appeal and convict the accused for the offence charged against them.

4. Heard learned counsel Shri Bhise for the respondents/accused. He has submitted that dying declarations, Exhibit Nos. 33 and 51 are doubtful. Oral dying declarations stated by P.W. 1, P.W. 2, P.W. 3 and P.W. 4 are not reliable. There are material omissions and contradictions in the evidence of P.W. 1, P.W. 2, P.W. 3 and P.W. 4. They are nearest relatives of deceased.

5. Learned counsel has submitted that deceased had sustained 99% burn