The voluntary and truthful nature of dying declaration and the competency of a child witness to depose are crucial in establishing guilt and determining the appropriate criminal offense.

JUDGMENT :

Abhay S. Waghwase, J.

1. Judgment and order of conviction passed by the learned Sessions Judge, Jalna dated 21-03-2012 in Sessions Case No.121 of 2012, is taken exception to by the convict by invoking Section 374 of the Code of Criminal Procedure.

PROSECUTION CASE IN TRIAL COURT

2. In short story of prosecution is that on 09-03-2012 at 09:00 p.m., appellant visited the house of deceased Sushila and insisted her to give him liquor on credit. She refused and therefore, appellant got enraged, abused her, poured kerosene on her person and incinerated her. She was taken to the hospital on account of 50% of burns. While undergoing treatment, her dying declaration was recorded by PW5 Rathod (PHC) and was consequently made basis of registration of crime. She succumbed to burn injury.

Crime was entrusted to PW6 Baste (PI). He carried out investigation and filed challan against accused for commission of offence under Sections 307 and 302 of the Indian Penal Code (IPC). Learned Sessions Judge, Jalna conducted trial, appreciated the oral and documentary evidence adduced by the prosecution and finally reached to the conclusion that dying declaration Exh.29 and testimony of PW2 Kavita, daughter of deceased, are inspiring confidence and accordingly held accused guilty and convicted him for the offence under Section 302 of the IPC. The said judgment and order is challenged in the present appeal.

SUBMISSIONS

On behalf of Appellant :

3. Learned Counsel for the appellant would submit that here only piece of evidence is dying declaration. There is no other evidence. According to him, there are several infirmities in the dying declaration rendering it doubtful. He pointed out that alleged occurrence is of 09-03-2012 but FIR is recorded on 12-03-2012. Delay is not explained and therefore, it is fatal for prosecution. He further pointed out that firstly the dying declaration is not in the vernacular of deceased and secondly, as required, the statement is not read over to the deceased before obtaining her thumb impression as there is no endorsement and so according to him, such dying declaration cannot be admitted, accepted or relied. He further pointed out that even dying declaration comes under shadow of doubt because there are insertions and overwriting. There apart material witnesses like mother and brother of deceased are not examined. A child is examined but her evidence is without administering oath and without ascertaining whether the child has intellectual capacity to depose. Even seized material is not sent to Chemical Analyzer (CA) for forensic analysis and as such there is no CA report. For all above reasons, he submits that such evidence ought not to have been accepted.

4. He further pointed out that going by sequence of evidence put-forth by prosecution, it is not a case of Section 302 as according to him, appellant never intended to commit murder. It is his submission that if at all this Court is not accepting above submissions, then it is his alternative submission that the case should be considered under Section 304 of the IPC as culpable homicide not amounting to murder and not under Section 302 of the IPC.

In support of his submission, learned Counsel relied on the following citations :

(a) State of Rajasthan v. Sheeshpal; AIR 2016 SC 4958.

(b) Smt.Rashida Abdul Gani Khairadi v. The State of Maharashtra; 2014 ALL MR (Cri) 244.

(c) Sampat Babso Kale v. State of Maharashtra; AIR 2019 SC 1852.

(d) Dinesh Vasant Bhoyar v. State of Maharashtra; 2018 (2) ABR (Cri) 446.

(e) Subhash Tikaram Jadhav v. State of Maharashtra; 2017 (1) ABR (Cri) 668.

On behalf of State :

5. In contrast learned APP pointed out that dying declaration Exh.29 is sufficient to record guilt. She submitted that here also dying declaration has been found to be truthful, voluntary and therefore, learned trial Judge has correctly accepted the same and also relied for holding guilt of the accused. She further pointed out that apart from dying declaration, very child of decease