Dying declarations can be the sole basis for conviction if found to be voluntary and credible, regardless of minor inconsistencies.

JUDGMENT :

Abhay S. Waghwase, J. - Present appeal is directed against judgment and order of learned learned Additional Sessions Judge, Dhule in Sessions Case No.95 of 2015 dated 29-09-2016, by which appellant is convicted for offence under Section 302 of the INDIAN PENAL CODE (IPC) and sentenced to suffer imprisonment for life till remainder of his natural life and to pay fine.

2. Shorn of details, the case set up by prosecution is as under:

Deceased Ratnabai was married to appellant and out of their wedlock they had children. Accused who was addicted to liquor used to suspect fidelity of deceased. On the intervening night of 16-05-2015 and 17-05-2015, accused came home drunk and raised suspicion on the character of deceased and thereafter, he poured kerosene over her and set her ablaze resulting into 87% of burns. While taking treatment, two dying declarations were recorded at Exh.15 and Exh.24 respectively. Crime was registered on the basis of second dying declaration recorded at 01:40 a.m. for offence under Section 307 of the IPC. While undertaking treatment, deceased succumbed to burns and therefore, crime was converted into Section 302 of the IPC and accused was arrested, charge-sheeted and tried and the fate of trial ended up as above.

3. In support of its case, prosecution has adduced evidence of in all eight witnesses. Their status is as under :

Evidence On Behalf Of Prosecution

PW1 Sandip Rohidas Patil is Pancha to spot Panchanama. His evidence is at Exh.E-9.

PW2 Sanjay Suresh Mali is Driver and he is another Pancha to Spot Panchanama. His evidence is at Exh.10.

PW3 Jyoti Bapu Patil is daughter of deceased and accused. Her evidence is at Exh.11.

PW4 Kailas Ramdas Patil is Police Naik, who recorded dying declaration Exh.15. His evidence is at Exh.13.

PW5 Dr.Kapileshwar Maganlal Chaudhari is Autopsy Doctor. His evidence is at Exh.18.

PW6 Mahendra Bhaskar Joshi is Special Executive Magistrate, who recorded dying declaration Exh.24. His evidence is at Exh.22.

PW7 Dr.Dinesh Sahebrao Dahite is the Medical Officer, who has made endorsement of fitness for giving statement to Special Executive Magistrate. His evidence is at Exh.27.

PW8 Deepak Prakash Dhoke is the Investigating Officer. His evidence is at Exh.33.

4. It seems that in the trial Court, prosecution was heavily relied on dying declarations on the ground that they are consistent and truthful versions coupled with evidence of child witness, who is daughter of accused and deceased.

Submissions

On behalf of appellant :

5. Before us, learned Counsel for the appellant would criticize the judgment under challenge by pointing out that firstly dying declarations are unworthy of credence and they cannot be said to be consistent. Learned Counsel even doubted the very capacity and fitness of deceased to give statement. In support of such doubt, she relied on the evidence of examining Doctor, who according to her, candidly admitted to that extent. She would further submit that though there is evidence of child witness, it is inconsistent with the version given by deceased and the motive attributed in the dying declaration and her version is also contrary. She also questioned the prosecution case pointing out that, there is no prompt recording of dying declaration and there is delay in recording the same. Therefore, according to her, there is possibility of deceased being tutored and as such her