IMPORTANT POINT
A dying declaration can serve as the sole basis for conviction if it meets the criteria of truthfulness, voluntariness, and absence of suspicion, as established by the Indian Evidence Act and relevant case law.

JUDGMENT/ORDER

SMT.VIBHA KANKANWADI, J. - Present Appeal has been filed by the original accused challenging his conviction by learned Additional Sessions Judge, Amalner, District-Jalgaon on 8/9/2015 in Sessions Case No.42 of 2012, after holding him guilty of committing offence under Sec. 302 and 323 of the Indian Penal Code. The appellant has been sentenced to suffer imprisonment for life and to pay fine of Rs.5,000.00, in default to suffer rigorous imprisonment for two years, for committing offence under Sec. 302 of the Indian Penal Code and he has been further sentenced to suffer rigorous imprisonment for one year for the offence punishable under Sec. 323 of the Indian Penal Code. Both the sentences have been directed to run concurrently.

2. Heard learned Advocate Mr. Wani appearing for the appellant and learned APP Mrs. Diggikar appearing for the respondent - State.

3. It has been vehemently submitted on behalf of the appellant that the learned trial Judge has not appreciated the evidence properly. It is alleged that the present appellant has committed murder of his wife Sangita. Sangita was admitted in the hospital after she had allegedly sustained burn injuries. Her dying declarations have been recorded at Exhibit-34, 41, and 73. Exhibit-73 has been treated as First Information Report (for short "FIR"), which is stated to have been recorded by the police head constable. The learned trial Judge failed to consider the inconsistencies in three dying declarations. The other two dying declarations i.e. Exhibit-34 and 41 are recorded by Naib Tahsildar - cum Executive Magistrates. It has been then alleged that the present appellant / husband had poured kerosene on the person of Sangita and set her to fire. Initially, the offence was registered under Sec. 307 of the Indian Penal Code, however, later on Sangita succumbed to the injuries and therefore, Sec. 302 of the Indian Penal Code came to be added. Prosecution has examined PW-6 Kokilabai, who is the neighbour of the deceased and appellant. She has deposed that around 2.30 a.m. she had heard the shouts of the deceased and when she went to the house of the deceased, she saw the deceased lying in burnt condition. She along with on Parvatibai, took deceased in rickshaw to hospital. The said witness has been believed by the trial Court, however, trial Court failed to consider that PW-6 Kokilabai had not mentioned that she has seen the accused in house. Same is the case with testimony of PW-7 Yogesh who is also the neighbour. The case of the prosecution was rested on the dying declarations but the learned trial Judge failed to consider that there is no attestation to the thumb impression on the dying declaration Exhibit-34. In respect of dying declaration Exhibit-41, PW-9 Ramesh Gulale has stated that he had not asked to Sangita whether she can speak Marathi or not. Though it is stated that her thumb impression was taken but in the inquest panchnama it is not stated that the ink mark was present on the thumb. PW-10 Dr. Govind Patil is the medical officer who had certified about the health condition of the deceased at the time of recording dying declaration, but in his cross-examination he has admitted that due to the administration of the antibiotics the patient may remain partly conscious. He also admitted that the skin of the fingers of both the hands of Sangita was completely burnt, then the question arises as to how the thumb mark was obtained. The dying declarations ought not to have been believed by the learned trial Judge as those were not free from doubts. The conviction to the appellant, therefore, deserves to be set aside.

4. Per contra, the learned APP strongly opposed the Appeal and she supported the reasons given by the learned trial Judge. Learned APP submitted that all the prosecution witnesses have supported the case of the prosecution. The postmortem report Exhibit-55 and testimony of PW-11 Dr. Kapileshwar Chaoudhari, who had conducted the autopsy, would show that the d