A dying declaration can serve as the sole basis for conviction if it is credible and free from infirmities; however, significant discrepancies and doubts regarding its reliability necessitate caution in its acceptance.

JUDGMENT

VRUSHALI V.JOSHI,J. - This is an appeal preferred against the judgment and order dtd. 24/02/2022 in Sessions Case No.31/2013 by the learned Sessions Judge, Akola thereby convicting and sentencing both the appellants-accused for the offence punishable under Sec. 302 read with Sec. 34 of the Indian Penal Code.

2. Briefly stated the facts of the case are as under : The deceased Suvarna Warankar died on 12/09/2012 due to burn injuries. When she was taken to the hospital, her statement was recorded. She has stated in her dying declaration that her husband and brother-in-law set her on fire as her husband was suspecting her character and asked her to give divorce and, therefore, in the morning on 12/09/2012 her brother-in-law caught hold her hands and the accused no.1, who is her husband, poured kerosene on her person and set her ablaze. She has specifically stated that she herself has not burnt her. The dying declaration was recorded by the Executive Magistrate i.e. Tahsildar. After recording the statement at about 8.30 pm, on the same day, she died. On the basis of said statement/dying declaration, the crime was registered by Sunil Solanke (PW-6), who was the in-charge of Balapur Police Station.

3. He has conducted the spot panchanama, recorded the statements of other witnesses and arrested the accused. The statement under Sec. 27 of the Indian Evidence Act was made by both the accused and their clothes, which were on their person on the date of incident, were recovered at the instance of both the accused. After completion of investigation, he has filed the chargesheet before the Court and it was committed to the Sessions Court.

4. Both the appellants were charged for the offence punishable under Ss. 498-A, 302, 504 r/w Sec. 34 of the Indian Penal Code. Both the accused were tried before the Sessions Court. On merits of the case, the learned Sessions Judge, Akola found that the offence of murder was proved beyond reasonable doubt. However, the charges under Sec. 498-A and 504 of the Indian Penal Code were not proved against both the accused and acquitted both of them from said offences and convicted both the accused for the offence punishable under Sec. 302 r/w 34 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for life and to pay a fine of Rs.5,000.00 each, indefault to suffer rigorous imprisonment for further period of one year. The said judgment and order is under challenge in this appeal.

5. We have heard Shri S.V. Sirpurkar, the learned counsel for the appellants-accused and Shri S.M. Ukey, the learned Additional Public Prosecutor for the respondent-State. We have carefully examined the record of the case.

6. The case is based on written dying declaration, and oral dying declaration made by deceased to her father i.e. PW-1 Gunwant Chandurkar and PW-3 Kokila Levatkar. The learned counsel for the appellants had stated that the trial court has convicted both the accused only on the basis of the dying declaration which was handed over to police belatedly after the death of the deceased. The deceased died on 12/09/2012 in the evening and the statement was recorded in the morning, it was handed over to the police after her death on 13/09/2012 and thereafter, the offence is registered, there is delay in lodging first information report. The dying declaration itself is doubtful, as there is scoring of timing in the dying declaration and the explanation is not given by the Executive Magistrate why there is scoring, which creates doubt about the dying declaration itself. Though the father of the deceased has given the statement about the burning by both the accused, he has not lodged the complaint on his own and his statement was recorded after five days. Nothing is mentioned by him as to why there was ill-treatment. He has stated that his daughter was with him for six to seven months and, thereafter, when he sent her back after few days, the incident took place and he lost his daughter. As the dying