Dying declarations can be the basis for conviction if voluntary and reliable; inconsistencies can undermine their credibility, especially when the accused was not present during the incident.

JUDGMENT :

1. In this appeal, there is challenge to the judgment and order dated 06.12.2004 passed by 1st Ad-hoc Additional Sessions Judge, Dhule in Sessions Case No. 91 of 2003 holding appellant guilty for offence punishable under sections 498-A and 306 of Indian Penal Code (IPC).

PROSECUTION CASE IN TRIAL COURT IS THAT

2. Azad Nagar Police Station, Dhule recorded crime on dying declaration Exh.40 given by deceased Fatemabi while she was admitted in civil hospital, Dhule, wherein she reported that, she is married two years back and is three months pregnant. On 08.05.2002, husband mother-in-law and father-in-law abused her in filthy language and beat her by fist blows in the morning. Previously also, there was abuse and beating to her. That, husband and in-laws did not like her. She had sought divorce and the same was not given.

Therefore, she poured kerosene on herself and immolated herself.

3. Her such statement was recorded by PW7 Chavan, who was working as PSI and he registered crime bearing no.61 of 2002 for offence punishable under sections 498-A, 323, 506 and 504 read with section 34 of IPC.

While undergoing treatment, she succumbed due to 85% burns and therefore, crime was altered to sections 498-A, 306, 506 and 504 of IPC and it was investigated by PW11 PSI Ramesh.

4. After gathering evidence, husband and in-laws came to be charge-sheeted and tried by learned 1st Ad-hoc Additional Sessions Judge, Dhule vide Sessions Case No.91 of 2003. On appreciation of the evidence adduced by prosecution, learned trial Judge acquitted accused no.4 sister-in-law and convicted husband and parents-in-law for offence punishable under section 498-A and 306 of IPC.

Hence, all three preferred appeal bearing No. 65 of 2005 questioning the impugned judgment.

EVIDENCE BEFORE TRIAL COURT

5. The prosecution has examined following 11 witnesses in support of its case. Their roles are as under :

PW1 Dr. Ajit Pathak, autopsy surgeon, who conducted P.M. and issued opinion of cause of death as “shock due to thermal burns.”

PW2 Bansilal, Special Executive Magistrate, who on receipt of communication from Azad Nagar Police Station, Dhule paid visit to civil hospital, Dhule and recorded dying declaration Exh.28.

PW3 Dr. Bharat, Medical officer, who examined and treated patient Fatema and gave endorsement of fitness after PW2 Bansilal approached him to record statement.

PW4 Mujahid, pancha to spot panchanama Exh.34 i.e. panchanama of house of deceased.

PW5 Abdul pancha to seizure of clothes of victim Exh.36. PW6 ASI Bhanudas, who prepared inquest panchanama at Exh.38.

PW7 ASI Chavan, who recorded dying declaration Exh.40 and made basis of registration of crime.

PW8 Abdul, father of deceased, did not support prosecution.

PW9 Md. Ramjan, uncle of deceased, did not support prosecution.

PW10 Jaibunnisa is mother of deceased.

PW11 PSI Ramesh is the Investigating Officer.

SUBMISSIONS On behalf of Appellant :

6. Learned counsel for appellant questioned the findings and judgment by submitting that, prosecution has failed to prove the charges beyond reasonable doubt. She pointed out that, there is no convincing legally acceptable evidence in support of the charge i.e. either section 498-A or 306 of IPC. It is pointed out that, in this case, there is no cruelty and there is no unlawful demand. Learned counsel pointed out that, father and uncle of deceased have not supported prosecution. That, mother has given exaggerated version and there is no foundation to her accusations in any other form and there is no corroboration to her testimony.

7. Learned counsel pointed out that, cohabitation of deceased with appellant husband was for almost two years, but at no point of time, there was any complaint of any maltreatment. She pointed out that, for the first time, crime is registered on the basis of dying declaration, wherein accusations are levelled, which are also vague in nature. Learned counsel pointed out that, there are two dying declarations and entire prosecution version depends on two