The admissibility and reliability of dying declarations and the requirement for them to be voluntary, truthful, and free from infirmities to be relied upon.

JUDGMENT

ABHAY S.WAGHWASE, J. - Appellant / original convict for charge under Sec. 302 of Indian Penal Code (IPC) has impugned the judgment and order of conviction passed by the learned Additional Sessions Judge, Parbhani, by which accused no.1 / appellant Udhav is sentenced to suffer imprisonment for life and to pay fine of Rs.2, 000.00, in default to suffer rigorous imprisonment for one year for offence under Sec. 302 of Indian Penal Code (IPC), to suffer one year rigorous imprisonment for offence under Sec. 498A of IPC, to suffer rigorous imprisonment for one month for offence under Sec. 323 of IPC and is also sentenced to suffer rigorous imprisonment for a period of one year for offence under Sec. 506-II of IPC.

BRIEF FACTS OF THE CASE IN TRIAL COURT

2. Appellant / Accused no.1 was charge-sheeted by Pathri Police Station, Tq.Pathri, Dist.Parbhani on accusation that, accused ill treated his wife Vandana. He had kept accused no.2 as mistress / concubine and was insisting that she would come to stay in his house. He used to beat Vandana for resisting and opposing the same. On intervening night of 11/7/2014 and 12/7/2014, on same count accused beat Vandana mercilessly. Again in the early hours of morning of 12/7/2014 he beat her saying that he has been asked by concubine to finish Vandana and thereafter, sprinkled kerosene on her person and set her ablaze. Children of deceased Vandana doused fire by pouring the water and she was taken to the hospital. From Rural Hospital, Pathri, she was shifted to Civil Hospital, Parbhani and there while undergoing treatment, deceased Vandana gave two dying declarations blaming husband Udhav for the burns. On the strength of her statements, FIR was lodged and PW13 Chhatrabhooj, who was then posted at Pathri Taluka Police Station, carried out investigation and after gathering sufficient evidence, accused came to be charge-sheeted for the offence punishable under Ss. 498A, 323, 302, 506-II of IPC and case came to be committed before the learned Additional Sessions Judge, Parbhani, who while conducting trial, appreciated oral and documentary evidence on behalf of prosecution and finally convicted accused no.1 as stated above.

3. Now by invoking Sec. 374 of the Code of Criminal Procedure, original accused no.1 is taking exception to the said judgment of conviction by raising various grounds raised the appeal memo.

4. The brief account of submissions advanced by both the sides are as under :

SUBMISSIONS ON BEHALF OF APPELLANT Learned Advocate for the appellant would submit that appreciation of the evidence at the hands of learned trial Court is based on assumptions and presumptions and there was no trustworthy and reliable evidence on behalf of prosecution in the trial court. It is submitted that defence taken by accused no.1 has not been properly appreciated by the learned trial Judge before arriving to the conclusion. Learned Advocate would emphasize that here there was no direct evidence. Very children of accused no.1 and deceased, who were present in the house, have given different versions to the Police, however, still learned trial Court has recorded guilt of the accused. It is pointed out that required ingredients for attracting charge under Sec. 498A were not available on record nor there was evidence in support of charges of commission of offence under Sec. 323, 506 of IPC, still learned trial Judge convicted accused no.1.

5. He next submitted that the only pieces of evidence before trial Judge were two dying declarations. However, learned Advocate submitted that both the dying declarations were not at all inspiring confidence and therefore, the same ought not to have been accepted by the learned trial Judge. Even legal position, while applying and appreciating dying declarations, has not been adopted by learned trial Judge while accepting the dying declarations. It is pointed out that prosecution's own evidence has created doubt as to whether deceased Vandana was physically and mentally in