The admissibility and reliability of dying declarations, the influence of intoxication on criminal actions, and the requirement of evidence for specific charges.

JUDGMENT

SMT.VIBHA KANKANWADI, J. - The appellant is the original accused No.1 who was prosecuted in Sessions Case No.23 of 2013 before the learned Sessions Judge, Nanded. The appellant has been held guilty of committing offence punishable under Ss. 302 and 498-A of the Indian Penal Code, by Judgment and order dtd. 14/8/2014 by the learned Sessions Judge, Nanded, hence this Appeal.

2. Heard learned Advocate Mr. Bhosle appearing for the appellant and learned APP Mr. Dasalkar appearing for the respondent - State.

3. It has been vehemently submitted on behalf of the appellant that the allegation against the appellant is that he has committed murder of his wife by pouring kerosene on her person. In fact, at the time of trial, the brother and mother of the appellant were also made an accused, however, they have been acquitted. The offence came to be registered on the basis of the First Information Report (for short "FIR") which was in fact a dying declaration given by the deceased and initially the offence came to be registered under Sec. 307 and other Ss. , however, later on the informant succumbed to her injuries and therefore Sec. 302 of the Indian Penal Code came to be added. It is not in dispute that present appellant was married to informant Muktabai about four years prior to the incident i.e. 23/8/2012. She was residing with appellant, brother-in-law, sister-in-law and mother-in-law. The case of the prosecution is based on two dying declarations which were recorded on 24/8/2012, almost consecutively. The dying declaration Exhibit-51 is recorded by the police head constable on duty at the hospital and dying declaration Exhibit-52 is recorded by Special Judicial Magistrate. The learned trial Judge has given unnecessary weightage to these two dying declarations and failed to consider that in the medical evidence it has come on record that neck, head and upper part of the body of the deceased had received major burn injuries. The trunk - anterior and posterior had received 16% burns each. Head, neck and face had received 6% burn injuries and including the other burn injuries, the total injuries the deceased had received comes to 56%. The cause of death is "septicemia due to burns". Muktabai expired on 30/8/2012. Further, on 24/8/2012 itself the relatives of the deceased had taken discharge of the patient against the medical advice and it has come on record that she was admitted to private hospital. However, the doctor at that place i.e. private hospital has not been examined by the prosecution. It ought not to have been therefore considered, taking into consideration the probable cause of death, that the death was homicidal in nature. Further, there were burn injuries to the accused also, which were not explained by the prosecution.

4. Learned Advocate for the appellant further submitted that PW-1 Nagorao Munde, who was the panch to the spot panchnama and PW-2 Arun Kamble, who is the neighbour of the accused, have turned hostile. PW-3 Govind Dantalwad is the panch to the disclosure and recovery panchnama and also the seizure panchnama of other articles, but independently his evidence cannot prove the offence. Discovery is stated to be of the clothes of the accused which showed the kerosene residue, however, when there is presence of the accused at the spot, it cannot be said that the accused is the culprit. PW-4 Panchfulabai is the sister of the deceased, who was admittedly not present at the spot. PW-5 Sanjiv Bhagat is the carrier who had taken the Muddemal articles to the Forensic Lab. PW-6 Dr. Vivek Jadhav is the medical officer who had given endorsement about the mental and health condition of the deceased on 24/8/2012 when the dying declarations Exhibit-51 and 52 were recorded. The admissions in his cross-examination were not considered by the learned trial Judge. PW-7 Dr. Maroti Dake is the medical officer who conducted the autopsy. PW-8 police head constable Gautam Kamble is the police official who had drawn the inquest panch