Criminal Appeal No. 469 of 2018 · The High Court
Case Details
2024:BHC-AUG:9723-DB Criminal Appeal No.469/2018:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.469 OF 20181)Navnath s/o Shivaji KateAge 34 years, Occu. Driver 2)Shivaji s/o Vithoba Kate,Age 68 years, Occu. Agri.3)Parvatibai w/o Shivaji Kate,Age 62 years, Occu. Agri.All above R/o Kate Mala, Hiware Zare, Tal. Nagar,District Ahmednagar… APPELLANTSVERSUS1.The State of Maharashtra Through the Police Station Officer,Nagar Taluka Police Station,District Ahmednagar(Copy to be served on Public Prosecutor, High Court of Judicature of Bombay,Bench at Aurangabad)2.Manoj s/o Dnyaneshwar Kharat,Age 34 years, Occu. Labour,R/o Shantinagar, Abhay College Road,Behind 50 Rooms Chawl,Opp. Jain Mandir, Dhule… RESPONDENTS.......Mr. N.V. Gaware, Advocate for appellants Mrs. Uma Bhosle, A.P.P. for respondent No.1 – State Ms. Yogita S. Thorat, Advocate holding for Mr. N.L. Choudhari, Advocate for respondent No.2. ....… Criminal Appeal No.469/2018:: 2 :: CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 27th February, 2024.Date of pronouncing judgment : 3rd May, 2024.JUDGMENT (PER R.G. AVACHAT, J.) The challenge in this appeal is to a judgment ofconviction and order of sentence, dated 17/5/2018, passed bythe Court of learned Additional Sessions Judge, Ahmednagar(Trial Court) in Sessions Case, No.214/2016. Vide impugnedjudgment and order, the appellant Nos.1 and 2 have beenconvicted for the offence punishable under Section 302 readwith Section 34 of the Indian Penal Code and therefore,sentenced to suffer imprisonment for life and fine of Rs.50,000/-(Rupees fifty thousand) each with default stipulation. While theappellant No.3 has been convicted for the offence punishableunder Section 302 read with Section 106 of the Indian Penalcode and therefore, sentenced to suffer rigorous imprisonment(R.I.) for seven years and to pay fine of Rs.30,000/- (Rupeesthirty thousand) with default stipulation.2.Facts in brief, giving rise to the present appeal areas follows :- Criminal Appeal No.469/2018:: 3 ::Navnath (appellant No.1) is a son of appellant Nos.2and 3 (father and mother respectively). The appellants arehereinafter referred to as A/1, A/2 and A/3, for the sake ofconvenience. The appellants were residing together at KateMala, Hiware Zare, Taluka and District Ahmednagar. Adinath,brother of appellant No.1 along with his wife and children wouldalso reside with the appellants. Sarika (deceased) had marriedA/1 way back in April 2007. The couple was blessed with twochildren – Pawan and Yash.3.It is the case of prosecution that, parents of Sarika(deceased) were financially unsound. She was, therefore,being subjected to ill-treatment by the appellants. Theappellants picked up quarrel with Sarika (deceased) in themorning of 9/3/2016 for no reason. A/2 (father-in-law) pouredkerosene on her person. A/1 (husband) set her ablaze byigniting a match stick. A/3 (mother-in-law) helped both A/1 andA/2 in setting Sarika ablaze. She continued to abuse Sarika.Adinath (brother-in-law of Sarika) and A/3 rushed Sarika to CivilHospital. P.W.4 Dr. Pushpa was on duty in Casualty Ward. Shegot Sarika admitted to hospital. Both Adinath and A/3 gaveP.W.4 Pushpa history of kerosene stove to have accidentallyburst and thereby Sarika suffered burns. P.W.4 Dr. Pushpa Criminal Appeal No.469/2018:: 4 ::took Sarika into confidence in absence of both Adinath and A/3to learn from her that A/1 poured kerosene on her person andA/2 allowed her to be burnt. A/3 remained a mute spectator tothe incident. She (P.W.4) recorded the same in the medicalpapers as a history given by the victim. 4.P.W.4 Dr. Pushpa informed the concerned PoliceStation. P.W.5 Sampat was a Police Head Constable. Herushed with a requisition letter (Exh.60) to ExecutiveMagistrate-cum-Naib Tahsildar, P.W.1 Sanjay. P.W.1 Sanjay, inturn, visited the hospital and after having found Sarika to beconscious oriented on her medical check-up, recorded herstatement (dying declaration). Based on the same, a crime videC.R. No.I-62/2016 was initially registered for the offencespunishable under Sections 307 and 498-A read with Section 34of the Indian Penal Code. P.W.9 Ravindra was entrusted withthe investigation. He paid visit to the scene of offence. Sceneof offence panchanama (Exh.64) was drawn in presence of twopanchas. The appellants were arrested. Clothes on the personof A/1 and A/2 were seized under panchanama (Exh.67).5.Sarika succumbed to the burns on 12th i.e. 3 daysafter the incident. Section 302 of the Indian Penal Code,
Facts
Criminal Appeal No.469/2018:: 5 ::therefore, came to be invoked. 6.P.W.6 Manoj Kharat, brother of Sarika gave astatement, informing that, Sarika was continuously ill-treated bythe appellants. She used to relate her woes to him and hisparents. According to him, on the preceding day i.e. on 8thMarch 2016, Sarika had informed him on phone that A/1 hadabused and threatened her. After demise of Sarika, astatement of Pawan, 8 year old son of Sarika, was recorded.According to the prosecution, he was an eye witness to theincident. 7.The mortal remains of Sarika were first subjected toinquest panchanama (Exh.88) and then autopsy (Exh.77).P.W.7 Dr. Manoj conducted autopsy. In his opinion, the causeof death of Sarika was hypovolmic shock due to 98% superficialto deep burn injuries. The seized articles were sent to ForensicScience Laboratory for analysis and report. Upon completion ofthe investigation, the appellants were proceeded against byfiling a charge sheet before a Court of learned JudicialMagistrate, First Class, Court No.4, Ahmednagar (J.M.F.C.).The learned Magistrate committed the case to the Court ofSessions. The case was in turn assigned to the Trial Court.
Legal Reasoning
Criminal Appeal No.469/2018:: 54 ::endorsement about the fitness of the patient on the letter aswell. True, a printed format was used by P.W.1 Sanjay forrecording D.D. He was candid enough to admit to have beennot imparted with any training in recording of D.D. According tohim, the D.D. (Exh.61) does not contain in the concernedcolumn the name of the Medical Officer who examined thepatient to certify her to be conscious oriented. According tohim, it was his mistake. In our view, P.W.1 Sanjay appears tohave not recorded the name of the Medical Officer (P.W.4 Dr.Pushpa) inadvertently. The endorsement given by P.W.4 aboutthe fitness of Sarika to make statement is there (on Exh.61) inher own handwriting and signature as well. It was given by 1.00p.m. on 9th March. The deceased Sarika stated P.W.1 Sanjaythat, by 9.00 in the morning A/2 abused her. A quarrel,therefore, ensued. A/2, therefore, poured kerosene on herperson and A/1 set her ablaze. A/3 was present in the houseand everything happened in her presence. It was further hercase that, her father-in-law would frequently pick up quarrel withher since her parent’s financial condition was poor. It is truethat, recording of her statement was concluded and thereaftersome matter has been recorded as stated by her. The samehas been cleared by P.W.1 Sanjay himself. According to him,Sarika then again expressed to state something more. She Criminal Appeal No.469/2018:: 55 ::then related that, A/1 would ask her to leave home. He used tobeat her up. It is also true that, P.W.1 Sanjay admitted thattherefore, he prefixed the words, “ पसनहकसकभगतझकक" before Sarikagave further statement after recording of D.D. was over (firstpart). The said recording did take place in the presence ofP.W.4 Dr. Pushpa who has certified her to have been consciousand well oriented as to time, place and person throughout thestatement.67.Last part of the D.D. (Exh.61) gets reinforced by theevidence of P.W.6 Manoj, who has testified that, on the previousday, Sarika had told him on phone that A/1 had abused her andasked her to leave the home. During cross-examination ofP.W.6 Manoj, the defence admitted the telephonic conversationbetween P.W.6 Manoj and the deceased on the previous day ofthe incident. It is reiterated in para No.15 of his cross-examination, it was suggested to him that he told Sarika duringthe said conversation that such instances used to occur inmatrimonial home and not to take them seriously.68.P.W.1 Sanjay being Naib Tahsildar-cum-ExecutiveMagistrate, went to his office after recording of D.D. (Exh.61).He drew a copy thereof and then handed over the original in Criminal Appeal No.469/2018:: 56 ::sealed cover to the concerned Police Station. It took some timetherein. Based on the said D.D., therefore, a crime (F.I.R.) hasnot been registered.DYING DECLARATION RECORDED BY P.W.5 SAMPAT69.P.W.5 Sampat was a P.H.C. attached to WalkiOutpost. His evidence indicates that, P.H.C. Gaikwad wasdeputed on examination Bandhobast duty. P.H.C. Gaikwad,therefore, requested him to make enquiry into M.L.C. report.P.W.5 Sampat therefore, wrote a letter to P.W.1 Sanjay,Executive Magistrate for recording of a statement of Sarika. Hisevidence further indicates that, he himself went to the CivilHospital by 2.00 p.m. He met P.W.4 Dr. Pushpa there. Hegave her a request letter to examine the patient and reportwhether she was able to make a statement. The said letter hasalready been referred to hereinabove. He then recordedSarika’s statement/ D.D. (F.I.R. Exh.68). He asked Sarikacertain questions. P.W.4 Dr. Pushpa, after examining her, gaveendorsement about her fitness to make a statement. Similarendorsement has also been given on the very document postrecording of the statement was over. Sarika related P.W.5Sampat what has been stated to P.W.1 Sanjay, ExecutiveMagistrate, which has been referred to hereinabove. She Criminal Appeal No.469/2018:: 57 ::related him that her father-in-law picked up quarrel for noreason. He doused her with kerosene. A/1 ignited her. A/3was present and was abusing her. Although it has been statedtherein that A/3 had assisted A/1 and A/2 in setting her ablaze,the statement is silent to state in what way/ manner A/3 hadassisted A/1 and A/2.70.On the same lines is the oral D.D. made by thedeceased to her brother P.W.6 Manoj. True, he was confrontedwith his police statement. In the last para of his policestatement, wherein there is a summary of the statement, it wasstated that, all the appellants set her ablaze. The same cannotbe considered to be a material contradiction with his evidencebefore the Court since in his statement under Section 161Cr.P.C. he stated to the police what role the appellants played.The same is consistent with the D.Ds. recorded by ExecutiveMagistrate P.W.1 Sanjay with P.H.C. P.W.5 Sampat. And evento substantial extent with the history recorded in the medicalpapers.71.A/1 gave a separate defence statement, statingtherein that Sarika was quarrelsome. She wanted to stay awayfrom the in-laws. His parents would reside away at Hiwre Zare. Criminal Appeal No.469/2018:: 58 ::Sarika wanted to admit her children in English Medium schoolat Ahmednagar. A petty quarrel ensued among the familymembers. Sarika entered the house with anger and startedigniting stove violently. She even closed the door from insideand after a while her shouts were heard. We are unable toaccede to these contentions without there being any supportivematerial even to agree to the same based on preponderance ofprobabilities. The scene of offence panchanama (Exh.64)indicates that no kerosene stove was found at the place and,therefore there was no question of it having been burnt andseizure by the investigating officer. True, an accused can raisemultiple and even mutually exclusive defences. The evidenceon record, however, indicates that, the appellants’ defence thatSarika suffered burns due to bursting of kerosene stove haseven not been made out based on preponderance ofprobabilities.72.Considering all the statements made by thedeceased, namely – first oral D.D. in the nature of history givento P.W.4 Dr. Pushpa, independent witness. Then recording ofher D.D. by Executive Magistrate P.W.1 Sanjay, thereafterrecording of her second D.D. by P.W.5 Sampat and oral D.D.made to her brother lead us to agree with the conclusion drawn Criminal Appeal No.469/2018:: 59 ::by the Trial Cort that A/1 and A/2 committed murder of Sarika bysetting her ablaze. The Trial Court was, therefore, justified inconvicting both of them for the offence of murder, punishableunder Section 302 r/w 34 of the I.P.C.73.True, the appellants have been acquitted of theoffence punishable under Section 498-A of the I.P.C. Relyingon the judgment in case of Sandip Rathod (supra), learnedcounsel for the appellants submitted that, in view of acquittalfrom offence punishable under Section 498-A, the prosecutionfailed to prove the appellants to have any motive to eliminatethe deceased. In our view, the evidence of P.W.6 Manoj,brother of the deceased, and the D.Ds. fell short to make outthe ingredients of Section 498-A of the Indian Penal Code and,therefore, they have rightly been acquitted of the said offence.That does not mean that the incident as alleged by theprosecution did not take place. Motive, many a time remainshidden.74.In our considered view, the Trial Court ought not tohave convicted A/3, mother-in-law of deceased Sarika. In themedical history given by the deceased to P.W.4 Dr. Pushpa andthe D.D. recorded by P.W.1 Sanjay, what has been stated was Criminal Appeal No.469/2018:: 60 ::that A/3 was simply present while A/1 and A/2 set her ablaze.In the D.D. recorded by Police Officer P.W.5 Sampat, it hasbeen recorded that, A/3 continued to abuse her and assistedA/1 and A/2. Neither the abusive words have been narrated northe manner has been stated in which A/3 allegedly assisted A/1and A/2 in setting her ablaze. The Trial Court convicted A/3 forthe offence of abetment of committing murder and, therefore,sentenced her to rigorous imprisonment for seven years.Section 107 of the Indian Penal Code speaks of abetment,which reads as under :“107. Abetment of a thing .—A person abets the doing of a thing, who—First.—Instigates any person to do that thing; orSecondly .—Engages with one or more other person or personsin any conspiracy for the doing of that thing, if anact or illegal omission takes place in pursuance ofthat conspiracy, and in order to the doing of thatthing; orThirdly .—Intentionally aids, by any act or illegal omission,the doing of that thing.Explanation 1 .—A person who, by wilful misrepresentation, or by Criminal Appeal No.469/2018:: 61 ::wilful concealment of a material fact which he isbound to disclose, voluntarily causes or procures,or attempts to cause or procure, a thing to be done,is said to instigate the doing of that thing.”75.The aforesaid provision would indicate that, thoughthe offence could be abetted by instigation or intentional aid orby entering into conspiracy, the D.Ds. of the deceased are silentto state as to how and in what manner A/3 had instigated A/1and A/2 or how she has assisted them in setting her ablaze.The mere fact that she was set ablaze in presence of A/3 andshe was a mute spectator is not sufficient to convict her for theoffence of abetment of committing murder. We are not inagreement with the reasons given by the Trial Court inconvicting the Appellant No.3 Parvatibai w/o Shivaji Kate.76.For all the aforesaid reasons, the appeal partlysucceeds in terms of the following order :O R D E R(i)The Criminal Appeal is partly allowed.(ii)The Criminal Appeal of appellant No.1 Navnath s/o Shivaji Criminal Appeal No.469/2018:: 62 ::Kate and appellant No.2 Shivaji s/o Vithoba Kate standsdismissed.(iii)The Criminal Appeal stands allowed so far as regardsappellant No.3 Parvatibai w/o Shivaji Kate. The order ofconviction and consequential sentence dated 17/5/2018,passed by learned Additional Sessions Judge, Ahmednagar inSessions Case No.214/2016, convicting the appellant No.3Parvatibai w/o Shivaji Kate and consequently sentencing her ishereby set aside. The appellant No.3 Parvatibai w/o ShivajiKate is acquitted of the offence punishable under Section 302read with 106 of the Indian Penal Code. Fine amount, if paid,be refunded to her. Her bail bonds are cancelled.(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-
Arguments
Criminal Appeal No.469/2018:: 6 ::8.The Trial Court framed the Charge (Exh.38). Theappellants pleaded not guilty. Their defence is of Sarika tohave suffered burns accidentally or she might have committedsuicide.9.The prosecution examined 9 witnesses andproduced in evidence certain documents, to bring home thecharge. On appreciation of the evidence adduced by theprosecution, the Trial Court convicted and consequentlysentenced the appellants as stated above.10.Heard. Learned counsel for the appellants wouldsubmit that, the deceased had suffered 98% of burns. She wasnot conscious-oriented and even mentally fit to make astatement-cum-dying declarations. The dying declarationsrelied on by the prosecution have all been fabricated. Thelearned counsel drew our attention to the medical papers of thevictim to indicate that the Surgeon had recorded that hercondition was critical. He would further submit that, the F.I.R.was lodged on the basis of second dying declaration. Thedying declarations did not contain endorsement whether thosewere read over to the deceased. Thumb impressions Criminal Appeal No.469/2018:: 7 ::appearing thereon have not been attested. The deceased hadsuffered 9% burns to her upper limbs i.e. from finger tip to theshoulder. As such, the thumb impression could not have beenobtained. The first dying declaration is in a printed format.Name of Medical Officer is missing therein. She was giveninjectables. Her physical as well as mental condition, therefore,could not be said to be well oriented. None of the appellantssuffered any burn injury since the case of the prosecution wasthat all the accused were inside the room. Appellant No.3 hasnot been attributed with any overt act in first dying declarationexcept her presence. No chemical analysis in relation tokerosene can was done.11.The learned counsel also adverted our attention tothe written statements submitted by the appellants before theTrial Court, suggesting their defence therein. According to him,the deceased was quarrelsome. She wanted to stay away fromthe in-laws. She further wanted to have her children admittedto English Medium school at Ahmednagar.12.Turning to the evidence of a child witness, thelearned counsel, relying on the authoritative pronouncements,would submit that, the child witness is prone to tutoring. Criminal Appeal No.469/2018:: 8 ::Evidence of child witness should not be relied on as it is. As acaution, a corroboration to the evidence of the child witness hasto be there. Statement of child witness was recorded after thedemise of his mother. It is not known as to why theinvestigating officer did not record statement of the children ofthe deceased soon after registration of the F.I.R. When thechild witness gave evidence before the Court, he was underinfluence of his maternal uncle, since he was staying with hismaternal grandparents for over a year next before he gaveevidence before the Court.13.The learned counsel further adverted our attentionto the writings given by the brother of the deceased and A/1acknowledging the condition of Sarika was critical and ifanything untoward happened, they would not hold the hospitalresponsible. The same suggests deceased Sarika was notconscious oriented to make a statement. The history was givenas accidental burns (bursting of stove) at 8.00 a.m. There isnothing to indicate as to in what way the Medical Officer tookthe victim into confidence to have her statement as a history tobe recorded in medical papers. The same too is very vague.Some endorsement has been made in the margin of themedical papers. According to the learned counsel, the Criminal Appeal No.469/2018:: 9 ::deceased died due to hypovolmic shock due to 98% superficialto deep burn injuries, as a result of which internal organs gotcongested. Sedatives were administered as pain killer.Learned counsel took us through the evidence of each andevery witness to ultimately submit that the dying declarationsand the evidence of the child witness and that of the brother ofthe victim Sarika did not inspire confidence. Contradictionsamounting to omissions in the police statement and evidence ofthe brother of the deceased Sarika were also brought to ournotice. He would further submit that, the appellants have beenacquitted of the offence punishable under Section 498-A readwith Section 34 of the Indian Penal Code. The same suggeststhat, there was no motive for the appellants to eliminate Sarika.According to learned counsel, based on such quality ofevidence, the Trial Court ought not to have convicted theappellants. He, therefore, urged for allowing the appeal.Learned counsel has relied on a host of authorities. A listthereof is given below :-(1)Jayamma & anr. Vs. State of Karnataka etc.(2021) 6 SCC 213(2)Sampat Babso Kale & anr. Vs. State of Maharashtra(2019) 4 SCC 739(3)Surinder Kumar Vs. State of Haryana Criminal Appeal No.469/2018:: 10 ::(2011) 10 SCC 173(4)Chacko Vs. State of Kerala(2003) 1 SCC 112(5)Sandip Prakash Rathod Vs. State of Maharashtra2022 SCC OnLine Bom 7224(6)State of Punjab Vs. Gian Kaur & anr.1998 SCC (Cri.) 942(7)Keshav Dada Sangale & anr. Vs. State of Maharashtra(2011) 4 AIR Bom R 628(8)Gopal Vs. State of Madhya Pradesh(2009) 12 SCC 600(9)Kajal Sen & ors. Vs. State of Assam(2002) 2 SCC 551(10)Hari Om Alias Hero Vs. State of Uttar Pradesh(2021) 4 SCC 345(11)Suryanarayana Vs. State of Karnataka(2001) 9 SCC 129(12)Raja Ram Yadav & ors. Vs. State of Bihar(1996) 9 SCC 287(13)V. Venkateshwarlu Vs. State of Andhra Pradesh(2012) 8 SCC 73(14)Radhey Shyam Vs. State of Rajasthan(2014) 5 SCC 389(15)Panchhi & ors. Vs. State of U.P. etc.(1998) 7 SCC 177(16)Shaikh Bakshu & ors. Vs. State of Maharashtra(2007) 11 SCC 26914.The learned A.P.P. would, on the other hand, submit Criminal Appeal No.469/2018:: 11 ::that, the scene of offence panchanama indicates kerosenestove was not there. The appellants have thus raised a falsedefence of bursting of a kerosene stove. On many of thearticles, kerosene residues were noticed during chemicalanalysis. Sarika was blessed with two minor children. She hadno reason to commit suicide nor was there any question of itbeing an accidental death. Master Pawan (child witness) is aneye witness to the incident. He gave graphic details as to howthe incident took place. The same suggests involvement of allthe appellants in the crime in question. The learned A.P.P.reiterated the reasons given by the Trial Court in support of theimpugned judgment and order. She relied on the Apex Courtjudgments in case of Khushal Rao Vs. State of Bombay (AIR1958 SC 22) and Laxman Vs. State of Maharashtra (AIR2002 SC 2973). She would further submit that, even absenceof certification of doctor as to fitness of mind of declarant wouldnot render declaration non-acceptable. What is essentiallyrequired is that the person who records a dying declarationmust be satisfied that the deceased was in free state of mind. Acertification by the doctor is essentially a rule of caution andtherefore, the voluntary and truthful nature of the declarationcan be established otherwise. (Case of Laxman Vs. State,supra). The learned A.P.P. ultimately urged for dismissal of the Criminal Appeal No.469/2018:: 12 ::appeal.15. Considered the submissions advanced. Perusedthe judgment impugned herein. Let us reappreciate theevidence in the case.16.Admittedly, Sarika (deceased) had married A/1 inApril 2007. She was blessed with two minor sons. One of them(Master Pawan) was examined as a witness to the incident.The incident took place in the house of the appellants in themorning of 9/3/2016. Sarika suffered 98% of burns. Detailsthereof are as under :Superficial to deep burns1)Over face and neck :9%2)Chest and abdomen:9 & 8 % respectively3)Back (Thoracic and:9% eachlumber region)4)Both lower legs and buttock:18% each(anterior and posterior)5)Upper limb (anterior and:9% eachposterior)Total burn injuries :98% Criminal Appeal No.469/2018:: 13 ::17.P.W.7 Dr. Manoj had conducted post mortemexamination. According to him, Sarika died of hypovolmicshock due to 98% superficial to deep burn injuries. Shesuccumbed to the burns 3 days after the incident.18.Admittedly, the parental house of deceased Sarikawas at Dhule. Her brother (P.W.6 Manoj) would also reside atDhule. It took long for him to reach Civil Hospital. Beforearrival of her relations from her parental side, dying declarationshad already been recorded. There was, therefore, no questionof the deceased to have been tutored to make dyingdeclarations.19.P.W.6 Manoj, brother of Sarika testified that theappellants would harass and ill-treat her since her parents werefinancially unsound. His evidence would further indicate that,many a time he had been to her matrimonial house to reasonwith the appellants and request them to be kind enough. Hisevidence further indicates that, on 8th March i.e. a daypreceding the day on which Sarika suffered burns, she hadmade a phone call to him and informed A/1 to have abused her.In his cross-examination (para 15), the talk between the two onphone has been admitted. A suggestion was given to him in the Criminal Appeal No.469/2018:: 14 ::following way.“It is correct that on 8/3/2016 when Sarikacalled me up, I told her that suchinstances used to occur in matrimonialhouse and not to take same veryseriously.”20. Evidence of P.W.6 Manoj further indicates that,Minakshi, relative of deceased Sarika from her parental sidehad reached the hospital before he reached. Adinath, brotherof A/1 was also in the hospital. It has further been brought onrecord through his cross-examination that, A/1 had purchasedgold ornaments for Sarika two years before the incident. He,however, denied that Sarika had pledged those ornaments atDhule to raise funds for him (P.W.6). He admitted that hedisliked the attitude of accused Navnath as he abused him anddrove him away when he visited his house before 2 ½ years ofthe incident. He further admitted that he got annoyed due to hisbehaviour. He admitted that, deceased Sarika used to doagricultural work as well as household work. He admitted that,it was Sarika’s wish to admit her sons in English Medium schooland that there was no English Medium school at Hiwre Zare,the accused did not agree to admit the children in EnglishMedium school. He admitted in his cross-examination that, he Criminal Appeal No.469/2018:: 15 ::did not know as to whether Sarika was willing to get shifted toAhmednagar for that purpose. He denied the suggestions that,after some days of marriage of Sarika, accused Nos.2 and 3 gotseparated. He admitted in his cross-examination that accusedNo.2 was Ex-Sarpanch of the village. He stated that he did notknow as to whether accused Navnath also started participatingin village politics. He admitted that deceased Sarika wassuspecting character of accused Navnath. She had disclosedthe said fact to her mother. He, however, stated that, he did notknow as to whether for that reason she was annoyed with theaccused Navnath. He denied the suggestion that Sarikawanted to get separated from Adinath, and Adinath andNavnath were not ready for that. He denied the suggestion thatSarika was of quarrelsome nature. He volunteered that,according to deceased, her statement was recorded by thepolice only once and that he had not stated the police that allthe accused set Sarika on fire. He denied the suggestion thatthe deceased had also not stated him that all the accused sether on fire. Portion marked “B” from his police station was readover to him. He admitted that it was also not fully correct. Hevolunteered that the accused had conspired together and setthe deceased on fire. He admitted that, he did not rememberas to whether he had stated the police that all the accused had Criminal Appeal No.469/2018:: 16 ::set the deceased on fire. He admitted that, he had givenstatement to police as disclosed by the deceased. He deniedthe suggestion that the deceased told him that all the accusedset her on fire and therefore he had stated so to the police. Hefurther admitted that he did not remember as to whether hisstatement was recorded by the police after the death of Sarika.He denied the suggestion that there was no ill-treatment todeceased Sarika by any of the accused at any point of time. Healso denied the suggestion that he did not receive any phonecall of deceased Sarika on 8/3/2016. He also denied thesuggestion that on 9/3/2016 Sarika disclosed nothing to him.He further denied the suggestion that there was no physical ormental ill-treatment by accused to deceased Sarika.21.The evidence of P.W.6 Manoj was taken up first forappreciation since the appellants were charged for offencepunishable under Section 498-A in addition to Section 302 ofthe I.P.C.22.The Trial Court, on appreciation of the evidence inthe case, acquitted all the appellants of the charge of offencepunishable under Section 498-A r/w 34 of the Indian PenalCode. Neither the State nor the victim (parents or brother of Criminal Appeal No.469/2018:: 17 ::deceased Sarika) have preferred appeal against acquittal.23.Admittedly, Sarika was rushed to the hospital by herbrother-in-law, Adinath and A/3 (mother-in-law). They gavehistory of accidental burns (bursting of stove). In ourconsidered view, had they stated true facts, they would havebeen at the receiving end. The same suggests a false historywas given to the Medical Officer. The scene of offencepanchanama (Exh.64), that was drawn in the presence of P.W.2Mahadeo indicates that no kerosene stove was noticed at thecrime scene. It was suggested to the investigating officer that,in spite of the same being there, its existence has not beennoted in the scene of offence panchanama (Exh.64). Thewitness to the scene of offence panchanama (P.W.2 Mahadeo)was a public servant. He had no reason to make a falsestatement. The crime scene panchanama has also not beenseriously taken exception to before us.24.P.W.1 Sanjay was Naib Tahsildar-cum-ExecutiveMagistrate. Police Head Constable Sampat Khaire (P.W.5) hadgiven him requisition (Exh.60) for recording a statement ofSarika admitted to Civil Hospital. It is in the evidence of P.W.1Sanjay that he received the same by 11.45 a.m. from Police Criminal Appeal No.469/2018:: 18 ::Head Constable Khaire (P.W.5) himself. It is further in hisevidence that, since he was busy in election duty, he went tothe Civil Hospital by 12.45 p.m. He met Medical Officer Dr.Pushpa (P.W.4) in Casualty Ward. He also issued her a requestletter to give her opinion as to whether the patient was fit tomake a statement. His evidence further indicates that, doctoraccompanied him to Burn Ward. P.W.4 Dr. Pushpa examinedSarika in his presence. He too put her some questions. Therewere 2-3 relatives. They were asked to leave. They left. Afterexamining Sarika, P.W.4 Dr. Pushpa gave endorsement,certifying her to be able to give statement. P.W.1 Sanjayreferred to the said endorsement. It is further in his evidencethat, he too put certain questions to Sarika to ascertain that shewas conscious oriented and could respond to his questionscorrectly. It is further in his evidence that, after having beenassured thereof, he recorded her statement (dying declaration),which reads as under : आजसककळळ९= ००वकजतकमकझझसकसऱयकनझशशवयक शदलयकनझभकभडणझकलझ. मकझयकसकसऱयकनझमकझयक अभगकवरररकझलटककलझवमकझयकनवऱयकनझमलकपझटववनशदलझ. तयकवझळळसकसवहजरहहतझ. मकझझसकसरझमकझझसभग नझहमळभकभडणमकझयकघरचळगररबळपररसससतळअसवन रहजभकभडतअसझ. नवरकगशवरषआहझ. मकझळतककरसकसरक, नवरकवसकससयकबदलतककरआहझ. सदरचक जबकबघझतकभनकमळपवणरपणझशसदळवरआहझ. यकपझककजकसत Criminal Appeal No.469/2018:: 19 :: सकभगणझनकहळ. हकजबकबमलकवकचवनदकखशवलकबरहबरआहझ. शद. ९/३/२०१६. पसनहकसकभगतझककमकझकनवरकमकझयकघरकतवनशनघवनजक असझनझहमळसकभगतअसझ. वमलकमकरहकणकरळतअसझ. हकजबकबमळसकभशगतलयकवरशदलकआहझ. सदरचकजबकबशद. ९/३/ २०१६रहजळदसपकरळ१३= ००वकजतकससर करन१३= २०वकजतकसभपशवणयकतआलक. 25.P.W.1 Sanjay was subjected to a searching cross-examination. The dying declaration (Exh.61) is in a printedformat. Name of the Medical Officer who examined the patientbefore he recorded dying declaration has not been mentionedtherein. He offered an explanation for it. According to him, itwas his mistake. The dying declaration contained certificationgiven by P.W.4 Dr. Pushpa to the effect :-“Pt. (Patient) is conscious, co-operativeoriented with time, place and person.Statement start on 9/3/16 at 1.00 p.m.”26.A similar certification has also been given by her onExh.61 after recording of the statement was over. P.W.4 Dr.Pushpa too referred to those endorsements in her evidence.27.The evidence of P.W.1 Sanjay indicates that, sinceleft thumb of Sarika had completely been burnt, he obtained Criminal Appeal No.469/2018:: 20 ::Sarika’s right thumb impression. It is true that, the said thumbimpression has not been attested. Exh.61 is also silent torecord that the statement was read over to Sarika and sheaffirmed the same. We do not find it to be a statutory mandate.P.W.1 Sanjay was categorical to state that, it was he whoobtained Sarika’s thumb impression and has signed alongsidethe thumb impression in his capacity as Executive Magistrate,who recorded the same.28.During cross-examination, P.W.1 Sanjay admittedthat, the words, “ पसनहकसकभगतझकक" have been added by him lateron. According to him, when the statement of Sarika wasrecorded, she again expressed desire to state something moreand, therefore, the last paragraph of her statement wasrecorded as per her say. The words, “ पसनहकसकभगतझकक" have,therefore, been introduced by him. The dying declaration wasrecorded between 1.00 – 1.20 p.m. It has further been broughton record during cross-examination of P.W.1 Sanjay that P.H.C.Khaire had not accompanied him to the Civil Hospital. He hasnot been imparted with the training in recording of dyingdeclaration. The format of the D.D. was prepared by hehimself. He denied the suggestion that he only asked thepatient about her name and the language she knew. This Criminal Appeal No.469/2018:: 21 ::impliedly suggests the appellants admit this witness to haveinteracted with the deceased for recording of her statement. Hedenied that, P.C. Shaikh who was on duty, dictated the contentsof the D.D. he recorded. He also denied that, to just bridge agap between already obtained thumb impression and the matterof para No.1 of the alleged D.D. some additional material hasbeen introduced by him on his own i.e. “ पसनहकसकभगतझकक". Hevoluntarily stated that, after completion of the recording of D.D.,the victim again expressed desire to say something more and,therefore, the further matter has been recorded on her say.29.It has further been brought on record that, he knewP.W.4 Dr. Pushpa to be Incharge of Burn Ward since he used tovisit the hospital for recording DDs. According to him, nopoliceman was present near the patient. He went on to statethat, condition of right thumb of the victim was better than theleft and, therefore, he obtained right thumb impression.30.P.W.1 Sanjay admitted that, the victim had sufferedburns to her face. Ointment was applied. The patient’s head,chest, both the hands, leg and back portion were also burnt.The Medical Officer did not examine the patient with themachine/ apparatus, except with stethoscope. According to Criminal Appeal No.469/2018:: 22 ::him, the Medical Officer was present with him all along duringrecording of the D.D. The Medical Officer took entry thereof inthe hospital record. He admitted the suggestion that theMedical Officer put her endorsement about consciousness ofthe patient by 12.55 p.m. He denied to have had not read overthe contents of the D.D. to the patient after recording was over.He, however, admitted that the font of the words, “ पसनहकसकभगतझकक"appearing in the D.D. is smaller than the font of the other mattertherein. According to him, he did not attest the thumbimpression of the patient since it was obtained by him and heput his signature alongside. His evidence further indicates that,P.H.C. Khaire did not meet him in the Civil Hospital. Hedelivered a sealed cover to the Police Inspector of theconcerned Police Station. There is some repetition of evidencesince two independent Advocates were representing theappellant No.1 and appellants No.2 and 3.31.P.W.1 Sanjay tendered in evidence a requisitionletter (Exh.60) given by P.H.C. Khaire to him for recording of theD.D. it is at Exh.60. True, it does not bear the time by which hereceived the same on 9/3/2016. It is also true that, D.D.(Exh.61) is silent to record the same to have been read over tothe patient. She (patient) confirmed the same and then put her Criminal Appeal No.469/2018:: 23 ::thumb impression. The thumb impression appearing thereonhas also not been attested.32.P.W.3 Ravindra was a panch witness to the seizureof clothes on the person of A/1 and A/2 under the panchanama(Exh.66 & 67). He was not subjected to cross-examination bydefence.33.P.W.2 Mahadeo is a witness to the scene of offencepanchanama. His evidence is referred to later on.34.P.W.5 Sampat was a Police Head Constableattached to Nagar Taluka Police Station. It is in his evidencethat he was deputed at Walki Outpost. P.H.C. Gaikwad calledhim on phone and told to make enquiry in the burn case ofSarika. He, therefore, went to the Police Station Officer andthere gave the M.L.C. report. He then gave the requisition tothe Executive Magistrate (P.W.1) for recording statement of thepatient. He referred to his requisition (Exh.60).35.It is further in his evidence that, he went to the CivilHospital at 2.00 p.m. on 9/3/2016. He met P.W.4 Dr. Pushpa inCasualty Ward. He requested her to accompany him for Criminal Appeal No.469/2018:: 24 ::recording statement of the patient. Both of them, therefore,went to the Burn Ward. P.W.4 Dr. Pushpa checked pulse andheart rate of the patient. She also made some enquiries withher. P.W.4 Dr. Pushpa then certified the patient was able tomake statement. She accordingly made endorsement on thepaper which was with him. He referred to the saidendorsement. It is further in his evidence that, P.W.4 Dr.Pushpa too made some enquiry with the patient. He too put hersome questions and after having satisfied of the patient beingconscious oriented, he recorded her statement, which reads asbelow :-जबकब तसझझनकवककयआहझ? मकझझनकवसकररककनवनकसककटझअसझअसवनवय- ३०वररअसझआहझ. तसमहळकहठझरकहकतक? घरकतकहणकहणआहझ? मळशहवरझझरझ, तक. नगरयझसझरकहतझ. घरकमधयझनवरकनवनकस शशवकजळककटझ, सकसरझ- शशवकजळ, सकसवपकवरतळवदहनमसलझपवनव यशअसझआहझत. हझकसझझकलझतवकशकमसळझभकजलळआहझस? मळघरकतअसतकभनकमलकसकसरचझलहकतवगरळबघरचळआहझअसझ महणवनमकझझशळनझहमळभकभडतकत. आजशदनकभक९/३/ १६रहजळ सककळळ०९: ००वक. चझससमकरकसघरळअसतकभनकमकझझसकसरझ शशवकजळशवठहबकककटझयकभनळककहळककरणनसतकभनकशशवळगकळ Criminal Appeal No.469/2018:: 25 :: करणझसससरवकतकझलळवभकभडणकरलकगलझ. तझवहकतयकभनळ ररकझलचकडडमघझऊनमकझझअभगकवरररकझलटककलझवनवरकनवनकस शशवकजळककटझयकनझककडळओढवनमलकपझटववनशदलझ. मकझळसकसव पकवरतळबकईशशवकजळककटझहळपणतझसझतयकभनकमदतकरनमलक शशवयकदझतहहतळ. सकसऱयकनझमकझझअभगकवरररकझलटककवननवऱयकनझ मलकपझटववनशदलझआहझवसकसवनझतयकभनकमदतकझलळआहझ. महणवन मकझळमकझकनवरकसकसवसकसऱयकशवरदतककरआहझ. मळसकभशगतलझलळहककगतखरळआहझ. 36.It is further in his evidence that, on completion of theaforesaid recording, P.W.4 Dr. Pushpa again examined thepatient to find her fitness. P.W.4 Dr. Pushpa accordingly madean endorsement below the same. His evidence furthersuggests that, he read over the matter to the patient. Sheadmitted it to be correct. He then obtained her thumbimpression and he put his signature thereon. The statement/D.D. recorded by P.W.5 Sampat is at Exh.68.37.He too was subjected to a searching cross-examination. He did not produce any document on record toindicate to have been authorised to record the statement/ D.D.of the patient. According to him, P.H.C. Shri Gaikwad was onexamination Bandhobast duty and, therefore, he asked him tomake enquiry into the M.L.C. No.105/2016. It was about 11.15 Criminal Appeal No.469/2018:: 26 ::a.m. He, therefore, went to the Civil Hospital directly. Hecarried the requisition to be given to the Executive Magistrate.He handed it over to P.W.1 Sanjay in his office. He denied thesuggestion that he got recorded the second statement of thevictim since the first one recorded by P.W.1 Sanjay wasdefective and not proper, and it was prepared using signaturesof the doctor and the thumb impression of the patient on blankform. He admitted that, the D.D. (Exh.68) recorded by himdoes not contain questions put by him to the patient to ascertainher fitness. He also admitted the statement to have been silentto record therein that it was read over to the patient and sheaffirmed the same. He, however, categorically denied to havefabricated the second D.D. (Exh.68).38.It is further in his cross-examination that, he directlywent to P.W.1 Sanjay in Tahsil Office. He did not make anyentry in the station diary about his proceeding to the CivilHospital for recording the patient’s statement. According tohim, he had recorded ten such statements before the one inquestion. It is also in his evidence that he did not issue a letterto the Medical Officer. The Medical Officer did not tell him as tothe patient to have already given her statement to P.W.1Sanjay. According to him, some part of the thumb of the patient Criminal Appeal No.469/2018:: 27 ::was not burnt. He could, therefore, obtain patient’s thumbimpression. He had noticed ink to the very thumb before heobtained the thumb impression.39.P.W.4 Dr. Pushpa testified that, in September 2015,she was a Medical Officer, Civil Hospital, Ahmednagar. On9/3/2016, she was on duty as Casualty Medical Officer. Atabout 9.35 a.m., Adinath Kate (brother-in-law of the deceased)and A/3 admitted Sarika to the hospital in burnt condition. Sheexamined Sarika. She also made some enquiry with Adinathand A/3. Both of them gave history of accidental burns i.e.bursting of kerosene stove. She accordingly recorded thehistory. It is further in her evidence that, she took the patient onthe bed for treatment. Asked both Adinath and A/3 to stayoutside. She then took Sarika into confidence. Sarika relatedher that quarrel took place in the house and in the said quarrel,A/2 poured kerosene on her person and A/1 set her ablaze. Atthat time, A/3 was also present. She noted the same as ahistory. She then shifted Sarika to Burn Ward. 40.It is further in her evidence that, by 12.45 p.m. P.W.1Sanjay visited the hospital. He gave her letter (Exh.67). Sheexamined the patient on his request and then certified her (the Criminal Appeal No.469/2018:: 28 ::patient) to be conscious oriented to make a statement. It isfurther in her evidence that she asked the relatives of thepatient to remain outside. She then examined pulse rate andheart beats. She made some enquiry with the patient. Sarikawas talking coherently and clearly. She found her to be fit tomake a statement. She accordingly gave endorsement on thepaper (Exh.61). She referred thereto and identified hersignature on Exh.61. It is further in her evidence that, P.W.1Sanjay recorded patient’s statement in her presence. Afterrecording of the statement was over, she again examined thepatient at the request of P.W.1 Sanjay and then certified her tobe fit and oriented. She gave an endorsement to that effect.She referred the same.41.It is further in her evidence that, thereafter a policeofficer from Nagar Taluka Police Station came to the hospital.She again examined the patient at his request. The relations ofthe patient were asked to leave the Ward. On being examinedthe patient, she found her to be well oriented and able to makea statement. She gave endorsement to that effect. P.W.4 Dr.Pushpa referred to the same. It is further in her evidence that,the police officer recorded the patient’s statement in herpresence. After recording of the statement was over, she again Criminal Appeal No.469/2018:: 29 ::examined the patient and gave endorsement about her fitness.She referred to the statement (Exh.68). P.W.4 Dr. Pushpaproduced in evidence I.P.D. case papers of the patient (Exh.70).42.P.W.4 Dr. Pushpa was subjected to a searchingcross-examination, wherein it has been brought on record thatin case of burn injuries, generally dehydration was noticed andin such a case patient feels drowsy. It would not be correct tosay that in dehydration cases, patient used to be confused.Such symptom was not seen in every case. Medicines given tothe patient generally start giving results within 15 minutes tohalf an hour. She admitted that entry of admission of patient inBurn Ward was taken on I.P.D. paper at 11.20 a.m., but in factthe patient was taken in the ward at 12.30 p.m. as per the notetaken by the concerned attending Nurse. She further admittedthat in the Burn Ward, treatment was actually started at about12.30 p.m. In casualty Section, she started giving treatment tothe patient by 9.40 a.m. She gave her analgesics. It wasinjectable. She denied the suggestion that the drug suspendsthe senses. She volunteered that, it reduced the pain. Centralnervous system gives sense of pain. She admitted that due tothe drug, pain senses are suspended. She denied thesuggestion that the drug suspends the central nervous system. Criminal Appeal No.469/2018:: 30 ::She admitted that drug Atropine works as an analgesic also.She went on to admit that the drug is classified as deliriam andthat it has also effect of drowsiness, confusion and dizziness. 43.She further admitted in her cross-examination thatshe had noted pulse rate of the patient at the time of heradmission, which was 60 per minute. She had not noted theheart beat rate specifically. She admitted that, in the casepaper, she had not mentioned that the patient told her that aquarrel took place in her house. She further admitted that, inthe case papers, it is not mentioned specifically that, “herhusband set her on fire”. She further admitted that, in the casepaper she did not mention as to how she took the patient intoconfidence. She admitted that, in the case paper she has notmentioned that, she asked the relatives i.e. Adinath and Parvatito stay outside. She further admitted in cross-examination thatthe patient was serious and therefore they obtainedendorsement of her husband giving him intimation of theseriousness. 44.P.W.4 Dr. Pushpa further admitted in her cross-examination that it was a case of hypovolemic shock and thatsuch a patient requires immediate and emergency medical Criminal Appeal No.469/2018:: 31 ::attention. It occurs when the patient loses nearly 1/5th of fluidincluding serum part of the blood. To a question asked to her inher cross-examination whether in such a case it is impossiblefor heart to pump at a sufficient rate and to supply blood todifferent parts of the body, she replied that, “It depends uponquantity of loss of fluid and serum.” She admitted in her cross-examination that, in clinical examination, one cannot diagnosethe damage caused to different parts of the body internally.She admitted that hypovolemic shock may lead to multipleorgan failure and that in such a case first 48 hours are mostcritical. She admitted that, 9% burn injury to upper limb meansfrom the tips of fingers up to the shoulders and 18% burninjuries to lower limb means from the tip of toes to the waistportion. She admitted that, in the present case genital organsof the patient were intact.45.She further admitted in her cross-examination that,at about 10.30 a.m. on 9/3/2016, general condition of thepatient was low and at 10.40 a.m., when the patient wasexamined by Surgeon, her condition was poor and feeble. Shefurther admitted that the Surgeon noted bilateral crupts, thatmeans there was noise in lungs. She denied the suggestionthat such a patient feels difficulty in breathing. She stated that Criminal Appeal No.469/2018:: 32 ::in each and every case gasping is not noticed whereas in thepresent case on 11/3/2016 gasping was noticed. She admittedthat the patient may lead to such a stage gradually. Sheadmitted that on 9/3/2016 at about 1.40 a.m. the Surgeon notedpoor general condition of the patient and made an endorsementwhich looks like “expand face”. She further admitted that at12.00 Hrs. in midnight, intimation was given to relative of patientnamely Manoj Kharat (P.W.6) about serious state of the patientand such note is taken under the signature of Manoj Kharat incase paper. She admitted that, the in the case paper, after hernote of 01.20 p.m., there is no note of examination of thepatient in between till 12.00 midnight. The treatment given tothe patient in the meanwhile is mentioned in the treatmentsheet which is part of the case paper. She admitted that thetreatment sheet bears details of medicines given to the patient.46.P.W.4 Dr. Pushpa further admitted in her cross-examination that, in the case paper she had not taken note ofher examination of patient at the time of recording of statementby police officer. She volunteered that, she forgot to take thenote at that time. She denied that, it is false statement on herpart. She admitted that, as and when patient is examined, theytake note in the case paper. She admitted that, in the entries of Criminal Appeal No.469/2018:: 33 ::examination of the patient taken on 9/3/2016 at 1.00 p.m. up to10/3/2016, no details of CNS, CRS and CVS were mentioned.She volunteered that the name is mentioned in the chartprepared by the concerned Sister. She stated that there arenotings of P i.e. pulse rate and R means respiratory rate. Thenotings were made by on duty staff.47.P.W.4 Dr. Pushpa further admitted that, in case ofhypovolemic shock, rapid and shallow breathing may benoticed. She denied the suggestion that in such a state patientusually loses consciousness. She admitted that, oxygen supplyto the brain is done through blood which includes fluid. Sheadmitted that, due to loss of blood and fluid, oxygen supply tothe blood may be affected. She admitted that in such situationthe blood becomes thick and cherry red. She stated that, it maybe correct that in such case blood may gradually get stagnant.She admitted that, in such a case brain functions may getaffected. She denied that after making endorsement on thepaper of dying declaration, she removed the relatives of thepatient from the Ward. She stated that, it did not so happenthat she gave no endorsements on papers at the beginning ofthe statement. She denied that, Mr. Pardeshi and police officerdid not come to her and she did not accompany them and she Criminal Appeal No.469/2018:: 34 ::did not make endorsements after examining the patient. Sheadmitted that in Burn Ward, the patients are kept in a cage. 48.P.W.8 Pawan, son of the appellant and thedeceased Sarika, was about 8 years of age at the relevant time.The Trial Court put him certain questions and interacted withhim to find him to be competent witness. The Trial Court thenproceeded to record his evidence. It is in his evidence that, onthe day of the incident, he himself, his father, Anna(grandfather), Aabu (grandmother) were standing in front oftheir house. Aabu told Pappa that Sarika did not wash hersaree, on which Pappa started abusing Mummy (Sarika). ThenAnna (grandfather) abused Mummy (Sarika) filthily, wenttowards her, pushed her away and assaulted her with hisChappal. He further stated that, then he rushed towardsMummy. At that time, Aabu said that his Mummy should not bekept alive. Then Anna (grandfather) caught hold of hair ofMummy and took her into the house. Pappa followed him.Anna (grandfather) poured something from drum on the personof Mummy and Pappa set her on fire by igniting a match stick.Mummy sustained burns. She started crying. In some time,uncle Adinath came. He poured water and also coveredMummy with quilt and then he took Mummy to hospital. Criminal Appeal No.469/2018:: 35 ::Mummy died.49.P.W.8 Pawan was subjected to a searching cross-examination. Being a child, he could not answer some of thequestions. According to him, quarrel took place loudly in frontof the house. Neighbours had also gathered. True, none of theneighbours has been examined. He was suggested thedefence version that on the given day his mother Sarika andAunt Geeta were asked to bring firewood. He claimedignorance about the dispute to have taken place over bringingof the firewood. He did not remember whether his motherthereupon got annoyed and went in the room and violentlyignited kerosene stove. He further claimed ignorance about thestove to have been burst and his mother suffered injuriesthereby. It is further in his evidence that, his statement wasrecorded three days after the incident i.e. after his motherpassed away. According to him, he and his younger brotherwere kept with the relatives for two days next after the incident.He, however, could not name the relative with whom both ofthem were. His evidence further indicates that, since thedemise of his mother Sarika, he has been residing with hismaternal grandparents and he had accompanied his maternaluncle to the Court to give evidence. Criminal Appeal No.469/2018:: 36 ::50.P.W.9 Ravindra is the investigating officer. Hisevidence indicates that, the Police Station Officer entrusted himwith the investigation of the crime in question. He, therefore,paid visit to the crime scene and drew scene of offencepanchanama (Exh.64) in the presence of P.W.2 Mahadeo. It isfurther in his evidence that, the scene of offence was a house atvillage Hivre-Zare in Katemala. He collected pieces of burntSari and burnt clothes, match stick, kerosene drum etc. fromthe scene of offence. We do not propose to refer to hisevidence in extenso considering his role as an investigatingofficer.51.During cross-examination, he testified that, both theappellant Nos.2 and 3 were residing at Katemala itself thoughthey have another house at Hivre-Zare. He denied thatkerosene stove was there in the room, however, he intentionallydid not seize it during the scene of offence panchanama.52.Aforementioned is the evidence adduced in thecase along with certain documents to which a reference wouldbe made while appreciating the evidence. Criminal Appeal No.469/2018:: 37 ::LAW RELATING TO DYING DECLARATION53.Section 32 of the Indian Evidence Act reads :“32. Cases in which statement of relevant fact byperson who is dead or cannot be found, etc., isrelevant :- Statements, written or verbal, of relevantfacts made by a person who is dead, or who cannot befound, or who has become incapable of givingevidence, or whose attendance cannot be procuredwithout an amount of delay or expense which, underthe circumstances of the case, appears to the Courtunreasonable, are themselves relevant facts in thefollowing cases :- Sub-section (1) thereof reads as follows :“(1) when it relates to cause of death :- When thestatement is made by a person as to the cause of hisdeath, or as to any of the circumstances of thetransaction which resulted in his death, in cases inwhich the cause of that person’s death comes intoquestion.Such statements are relevant whether the person whomade them was or was not, at the time when theywere made, under expectation of death, and whatevermay be the nature of the proceeding in which thecause of his death comes into question.”54.Way back in 1958, the Apex Court, in case ofKhushal Rao (supra), observed :-“(C) Evidence Act (1 of 1872), S.32,S.114, S.133 –Dying declaration and confession. Criminal Appeal No.469/2018:: 38 ::Sometimes, attempts have been made to equate a dyingdeclaration with the evidence of an accomplice or theevidence furnished by a confession as against themaker, if it is retracted, and as against others, eventhough not retracted. But it is not right in principle todo so. Though under S.133 of the Evidence Act, it isnot illegal to convict a person on the uncorroboratedtestimony of an accomplice, Illustration (b) to S.114 ofthe Act, lays down as a rule of prudence based onexperience, that an accomplice is unworthy of creditunless his evidence is corroborated in materialparticulars and this has now been accepted as a rule oflaw. The same cannot be said to a dying declarationbecause a dying declaration may not, unlike aconfession, or the testimony of an approver, come froma tainted source, Generally, speaking, the maker of adying declaration cannot be tarnished with the samebrush as the maker of a confession or an approver. (D) Evidence Act (1 of 1872), S.32 – Dyingdeclaration – Value.It cannot be laid down as an absolute rule of law that adying declaration cannot form the sole basis ofconviction unless it is corroborated; each case must bedetermined on its own facts keeping in view thecircumstances in which the dying declaration wasmade; it cannot be laid down as a general propositionthat a dying declaration is a weaker kind of evidencethan other pieces of evidence; a dying declarationstands on the same footing as another piece ofevidence and has to be judged in the light ofsurrounding circumstances and with reference to theprinciples governing the weighing of evidence; a dyingdeclaration which has been recorded by a competentmagistrate in the proper manner, that is to say, in theform of questions and answers, and, as far aspracticable, in the words of the maker of thedeclaration, stands on a much higher footing than adying declaration which depends upon oral testimonywhich may suffer from all he infirmities of human Criminal Appeal No.469/2018:: 39 ::memory and human character, and in order to test thereliability of a dying declaration, the Court has to keepin view, the circumstances like the opportunity of thedying man for observation, whether the capacity of theman to remember the facts stated, had not beenimpaired at the time he was making the statement, bycircumstances beyond his control; that the statementhas been consistent throughout if he had severalopportunities of making a dying declaration apart fromthe official record of it; and that the statement had beenmade at the earliest opportunity and was not the resultof tutoring by interested parties. A.I.R. 1940 Mad.196, Approved.(E) Evidence Act (1 of 1872), S.32 -Dying declaration– Corroboration. In order to pass the test of reliability, a dyingdeclaration has to be subjected to a very close scrutiny,keeping in view the fact that the statement has beenmade in the absence of the accused who had noopportunity of testing the veracity of the statement bycross-examination. But once; the Court has come tothe conclusion that the dying declaration was thetruthful version as to the circumstances of the deathand the assailants of the victim, there is no question offurther corroboration. If, on the other hand, the Court,after examining the dying declaration in all its aspects,and testing its veracity, has come to the conclusion thatit is not reliable by itself, and that it suffers from aninfirmity, then, without corroboration it cannot formthe basis of a conviction. Thus, the necessity forcorroboration arises not from any inherent weakness ofa dying declaration as a piece of evidence, but from thefact that the Court, in a given case, has come to theconclusion that that particular dying declaration wasnot free from the infirmities. Observations in A.I.R.1953 SC 420, held to be in the nature of obiter.”55.The Constitution Bench of the Apex Court, in case Criminal Appeal No.469/2018:: 40 ::of Laxman (supra) observed : 3.The juristic theory regarding acceptability of adying declaration is that such declaration is made inextremity, when the party is at the point of death andwhen every hope of this world is gone, when everymotive to falsehood is silenced, and the man isinduced by the most powerful consideration to speakonly the truth. Notwithstanding the same, greatcaution must be exercised in considering the weightto be given to this species of evidence on account ofthe existence of many circumstances which mayaffect their truth. The situation in which a man is ondeath bed is so solemn and serene, is the reason inlaw to accept the veracity of his statement. It is forthis reason the requirements of oath and cross-examination are dispensed with. Since the accusedhas no power of cross- examination, the court insistthat the dying declaration should be of such a natureas to inspire full confidence of the court in itstruthfulness and correctness. The court, however hasto always be on guard to see that the statement of thedeceased was not as a result of either tutoring orprompting or a product of imagination. The court alsomust further decide that the deceased was in a fit stateof mind and had the opportunity to observe andidentify the assailant. Normally, therefore, the courtin order to satisfy whether the deceased was in a fitmental condition to make the dying declaration lookup to the medical opinion. But where theeyewitnesses state that the deceased was in a fit andconscious state to make the declaration, the medicalopinion will not prevail, nor can it be said that sincethere is no certification of the doctor as to the fitnessof the mind of the declarant, the dying declaration isnot acceptable. A dying declaration can be oral or inwriting and in any adequate method ofcommunication whether by words or by signs orotherwise will suffice provided the indication ispositive and definite. In most cases, however, suchstatements are made orally before death ensues and isreduced to writing by someone like a magistrate or a Criminal Appeal No.469/2018:: 41 ::doctor or a police officer. When it is recorded, nooath is necessary nor is the presence of a magistrate isabsolutely necessary, although to assure authenticityit is usual to call a magistrate, if available forrecording the statement of a man about to die. Thereis no requirement of law that a dying declarationmust necessarily be made to a magistrate and whensuch statement is recorded by a magistrate there is nospecified statutory form for such recording.Consequently, what evidential value or weight has tobe attached to such statement necessarily depends onthe facts and circumstances of each particular case.What is essentially required is that the person whorecords a dying declaration must be satisfied that thedeceased was in a fit state of mind. Where it isproved by the testimony of the magistrate that thedeclarant was fit to make the statement even withoutexamination by the doctor the declaration can beacted upon provided the court ultimately holds thesame to be voluntary and truthful. A certification bythe doctor is essentially a rule of caution andtherefore the voluntary and truthful nature of thedeclaration can be established otherwise.4.. . . . . The court relied upon the earlierdecision. In Ravi Chander v. State of Punjab, [1998]9 SCC 303 wherein it had been observed that for notexamining by the doctor the dying declarationrecorded by the executive magistrate and the dyingdeclaration orally made need not be doubted. Themagistrate being a disinterested witness and is aresponsible officer and there being no circumstancesor material to suspect that the magistrate had anyanimus against the accused or was in any wayinterested for fabricating a dying declaration,question of doubt on the declaration, recorded by themagistrate does not arise.5.. . . . . It is indeed a hyper-technical view thatthe certification of the doctor was to the effect thatthe patient is conscious and there was no certificationthat the patient was in a fit state of mind speciallywhen the magistrate categorically stated in his Criminal Appeal No.469/2018:: 42 ::evidence indicating the questions he had put to thepatient and from the answers elicited was satisfiedthat the patient was in a fit state of mind where-afterhe recorded the dying declaration. Therefore, thejudgment of this court in Paparambaka Rosamma andOrs. v. State of Andhra Pradesh, [1999] 7 SCC 695must be held to be not correctly decided and weaffirm the law laid down by this court in Koli ChunilalSavji and Anr. v. State of Gujarat, [1999] 9 SCC 562case.”56.Moreover, the Apex Court, in Jayamma’s case(supra), held 14.Before we advert to the actual admissibility andcredibility of the dying declaration (Ex.P-5), it will bebeneficial to brace ourselves of the case-law on theevidentiary value of a dying declaration and thesustenance of conviction solely based thereupon. Wemay hasten to add that while there is huge wealth ofcase law, and incredible jurisprudential contribution bythis Court on this subject, we are consciously referringto only a few decisions which are closer to the facts ofthe case in hand. We may briefly notice thesejudgments.14.1In P.V. Radhakrishna. v. State of Karnataka(2003) 6 SCC 443, this Court considered the residuaryquestion whether the percentage of burns suffered is adeterminative factor to affect the credibility of a dyingdeclaration and the probability of its recording. It washeld that there is no hard and fast rule of universalapplication in this regard and much would dependupon the nature of the burn, part of the body affected,impact of burn on the faculties to think and otherrelevantfactor.14.2In Chacko v. State of Kerala (2003) 1 SCC 112, Criminal Appeal No.469/2018:: 43 ::this Court declined to accept the prosecution casebased on the dying declaration where the deceased wasabout 70 years old and had suffered 80 per cent burns.It was held that it would be difficult to accept that theinjured could make a detailed dying declaration after alapse of about 8 to 9 hours of the burning, givingminute details as to the motive and the manner inwhich he had suffered the injuries. That was of coursea case where there was no certification by the doctorregarding the mental and physical condition of thedeceased to make dying declaration. Nevertheless, thisCourt opined that the manner in which the incident wasrecorded in the dying declaration created grave doubtsto the genuineness of the document. The Court went onto opine that even though the doctor therein hadrecorded “patient conscious, talking” in the woundcertificate, that fact by itself would not further the caseof the prosecution as to the condition of the patientmaking the dying declaration, nor would the oralevidence of the doctor or the investigating officer,made before the court for the first time, in any mannerimprove the prosecution case. 14.3In Sham Shankar Kankaria v. State ofMaharashtra (2006) 13 SCC 165, it was restated thatthe dying declaration is only a piece of untestedevidence and must like any other evidence satisfy theCourt that what is stated therein is the unalloyed truthand that it is absolutely safe to act upon it. Further,relying upon the decision in Paniben v. State of Gujarat(1992) 2 SCC 474, wherein this Court summed upseveral previous judgments governing dyingdeclaration, the Court in Sham Shankar Kankaria(Supra) reiterated:-“(i) There is neither rule of law nor of prudencethat dying declaration cannot be acted uponwithout corroboration. (See Munnu Raja v. Stateof M.P.[(1976) 3 SCC 104]); (ii) If the Court is satisfied that the dyingdeclaration is true and voluntary it can baseconviction on it, without corroboration. (See Criminal Appeal No.469/2018:: 44 ::State of U.P. v. Ram Sagar Yadav [(1985) 1 SCC552 and Ramawati Devi v. State of Bihar[(1983)1 SCC 211]);(iii) The Court has to scrutinise the dyingdeclaration carefully and must ensure that thedeclaration is not the result of tutoring,prompting or imagination. The deceased had anopportunity to observe and identify the assailantsand was in a fit state to make the declaration.(See K. Ramachandra Reddy v. Public Prosecutor[(1976) 3 SCC618]);(iv) Where dying declaration is suspicious, itshould not be acted upon without corroborativeevidence. (See Rasheed Beg v. State of M.P.[(1974) 4 SCC 264]);(v) Where the deceased was unconscious andcould never make any dying declaration theevidence with regard to it is to be rejected. (SeeKake Singh v. State of M.P. [1981 Supp SCC25]);(vi) A dying declaration which suffers frominfirmity cannotform the basis of conviction. (See Ram Manorathv. State ofU.P. [(1981) 2 SCC 654]);(vii) Merely because a dying declaration doesnot contain thedetails as to the occurrence, it is not to berejected. (See State of Maharashtra v.Krishnamurti Laxmipati Naidu [1980 Supp SCC455]);(viii) Equally, merely because it is a briefstatement, it is not to be discarded. On thecontrary, the shortness of the statement itselfguarantees truth. (See Surajdeo Ojha v. State ofBihar [1980 Supp SCC 769]); Criminal Appeal No.469/2018:: 45 ::(ix) Normally the court in order to satisfywhether the deceased was in a fit mentalcondition to make the dying declaration look upto the medical opinion. But where the eyewitnesshas said that the deceased was in a fit andconscious state to make the dying declaration, themedical opinion cannot prevail. (See NanhauRam v. State of M.P. [1988 Supp SCC 152]);(x) Where the prosecution version differs fromthe version as given in the dying declaration, thesaid declaration cannot be acted upon. (See Stateof U.P. v. Madan Mohan [(1989) 3 SCC 390]);(xi) Where there are more than one statementin the nature of dying declaration, one first inpoint of time must be preferred. Of course, if theplurality of dying declaration could be held to betrustworthy and reliable, it has to be accepted.(See Mohanlal Gangaram Gehani v. State ofMaharashtra [(1982) 1 SCC 700])”.16.We may also take note of the decision of thisCourt in the case of Surinder Kumar (Supra). In thesaid case, the victim was admitted in hospital withburn injuries and her dying declaration was recordedby an Executive Magistrate. This Court, first doubtedwhether the victim could put a thumb impression onthe purported dying declaration when she had suffered95-97 per cent burn injuries. Thereafter, it was notedthat “at the time of recording the statement of thedeceased.......no endorsement of the doctor was madeabout her position to make such statement”, and onlyafter the recording of the statement did the doctor statethat the patient was conscious while answering thequestions, and was “fit to give statement ”. This Courtlastly noticed that before the alleged dying declarationwas recorded, the victim in the course of her treatmenthad been administered Fortwin and Pethidineinjections, and therefore she could not have possessednormal alertness. It was hence held that although thereis neither a rule of law nor of prudence that the dying Criminal Appeal No.469/2018:: 46 ::declaration cannot be acted upon withoutcorroboration, the Court must nonetheless be satisfiedthat the dying declaration is true and voluntary, andonly then could it be the sole basis for convictionwithout corroboration.17.Consistent with the cited principles, this Courtrefused to uphold the conviction in the case of SampatBabso Kale and Another v. State of Maharashtra 2019(4) SCC 739. The dying declaration in that case wasmade by a victim who had suffered 98 percent burninjuries, and the statement was recorded after thevictim was injected with painkillers. This Courtadopted a cautious approach, and opined that therewere serious doubts as to whether the victim was in afit state of mind to make the statement. Given theextent of burn injuries, it was observed that the victimmust have been in great agony, and once a sedative hadbeen injected, the possibility of her being in a state ofdelusion could not be completely ruled out. Further, itwas specifically noted that “the endorsement made bythe doctor that the victim was in a fit state of mind tomake the statement has been made not before thestatement but after the statement was recorded.Normally it should be the other way around.”[emphasis supplied]57.We have also perused the other judgments relied onby learned counsel for the appellants to ultimately come to aconclusion that each case has to be decided on its peculiarfacts and circumstances obtainable therein. Judgments No.1 to9 referred in the list hereinabove are on the point of dyingdeclaration. Other judgments relied on are in relation toappreciation of evidence of a child witness. Criminal Appeal No.469/2018:: 47 ::58.Keeping on mind the legal position as regards D.D.,let us appreciate the evidence in the case. Admittedly, deceased Sarika suffered extensiveburns at her matrimonial home by 9.00 in the morning of9/3/2016. Her parental house is situated at Dhule. Her brother(P.W.6 Manoj) was also residing at Dhule. Sarika was rushedto the hospital by A/3 and her brother-in-law. She had suffered98% deep and superficial burns. Three days after the incidenti.e. on 12/3/2016, she succumbed to the injuries. The postmortem report (Exh.77) indicates Sarika died of hypovolmicshock due to 98% superficial to deep burn injuries. 59.The Trial Court has observed the case to have beenbased on an eye witness account, dying declarations andcircumstantial evidence as well. 60.So far as regards direct evidence in the nature of aneye witness account is concerned, we have evidence of P.W.8Pawan, 8 year old child of the deceased. His evidence hasbeen referred to in paragraph No.48 above. In short, the childwitness attributed each and every appellant with some overt act Criminal Appeal No.469/2018:: 48 ::in the incident. Admittedly, he was around 8 years of age at therelevant time. He was kept with some of his relations for twodays next after the incident. His statement was recorded on thethird day i.e. on the day on which his mother (Sarika) passedaway. If we compare his eye witness account with the dyingdeclarations given by the deceased, first to the Medical Officerand then to the Executive magistrate and P.W.5 Sampat, itwould indicate that, there is great variance between the eyewitness account on one hand and the dying declarations on theother. We, therefore, do not propose to rely on the evidence ofMaster Pawan. Admittedly, he had been residing at hismaternal grandparent’s house since the day of the incident. Hecame to the Court to give evidence in the company of hismaternal uncle (P.W.6 Manoj).DYING DECLARATION (1) :61.P.W.4 Dr. Pushpa is an independent witness. Thereis nothing to indicate her to have any kind of interest in thematter. Admittedly, P.W.4 Dr. Pushpa was on duty as aCasualty Medical Officer on 9/3/2016. When Sarika wasadmitted to the hospital, she was accompanied by A/3 andSarika’s brother-in-law Adinath. Both of them were interested tosee that exculpatory history was given to the Medical Officer. Criminal Appeal No.469/2018:: 49 ::Both of them, therefore, informed P.W.4 Dr. Pushpa that Sarikasuffered burns due to bursting of kerosene stove. True,according to them, the incident took place at 8.00 in themorning. The medical papers on record indicate the victim tohave been admitted/ brought to the hospital by 9.35 a.m.directly from home. Necessarily, soon after the incident. Thatfalsifies that the incident took place at 8.00 in the morning. Theevidence of P.W.4 Dr. Pushpa is to the effect that she askedboth Adinath and A/3 to stay outside the room. She then tookSarika into confidence to learn from her (Sarika) that her father-in-law (A/2) poured kerosene on her person and then A/1allowed her to burn in presence of her mother-in-law. Exh.70 isa medical case record of deceased Sarika. The history givenby both, A/3 and Adinath on one hand and deceased Sarika onthe other have been immediately recorded in those medicalpapers. True, in the margin of the said paper, it has beenrecorded that, according to the history given by the patient. Wedo not propose to give much importance thereto since the samewording has been recorded in bold on the middle of the verypaper also. The history given by deceased Sarika to P.W.4 is inthe nature of her first D.D. The Trial Court has rightly observedthat, P.W.4 Dr. Pushpa being a Medical Officer, must not havebeen in the know of legal niceties. Therefore, P.W.4 Dr. Criminal Appeal No.469/2018:: 50 ::Pushpa’s evidence before the Court that A/2 poured keroseneon the person of Sarika and A/1 set her ablaze by lighting amatch stick in the presence of mother-in-law could not be saidto be an improvement made with a view to ensure theprosecution to be successful. We are in complete agreementwith the observations made by the Trial Court in this regard.62.It is true that, Sarika had suffered 98% of burns.Her pulse rate was 60. A writing was obtained from herhusband to the effect that he was informed by the MedicalOfficer that his wife’s (Sarika) condition was critical and ifanything untoward happened, he would not hold responsibleeither to the hospital or the Medical Officer. It is also true that,the Surgeon had found the condition of Sarika to have beencritical. It was a noting made post 11.00 a.m. P.W.4 Dr.Pushpa’s evidence indicates that she was all along presentduring recording of both the D.Ds., one by the ExecutiveMagistrate and another by the police officer. It is further in herevidence that, she had examined Sarika before and afterrecording of her both the statements and found her to beconscious oriented to make statements. She had examinedSarika with stethoscope. Her pulse rate was checked. On boththe D.Ds. (Exh.61 and 68), she gave endorsement to that effect Criminal Appeal No.469/2018:: 51 ::under her signature. She referred those in her examination-in-chief itself. She had also given a separate endorsement onExh.67, a letter given by P.W.1 Sanjay (Executive Magistrate) toher with a request for examining the patient as to whether shewas fit to make a statement.63.It is true that, P.W.4 Dr. Pushpa and P.W.7 Dr.Manoj, who conducted the post mortem examination, testifiedthat in case of hypovolmic shock, there use to be loss of fluidand blood. Substantial loss of fluid and blood affects physicaland mental condition of patients, was the response of P.W.7 Dr.Manoj. According to him, internal organs get damaged as aresult of hypovolmic shock. It is only in post mortemexamination such damage to internal organs could be notedproperly. He has, however, categorically denied that mentalcondition of a patient could not be ascertained by mere physicalexamination. Admittedly, P.W.7 Dr. Manoj had not treateddeceased Sarika. What he did is the post mortem examinationonly.64.P.W.4 Dr. Pushpa admitted that, drug Atropine worksas an analgesic also. The said drug is classified as deliriamand that it has also effect of drowsiness, confusion and Criminal Appeal No.469/2018:: 52 ::dizziness. She had administered the patient analgesics ininjectable form. She was categorical to deny that such drugsuspends the senses. According to her it reduces the pain.She denied that, such drug suspends central nervous system.She admitted that the patient was serious and accordingly, itwas informed to her relations. Her evidence further indicatesthat, in case of hypovolmic shock, the patient requiresimmediate medical attention. She did admit that, in clinicalexamination, one cannot diagnose the damage caused todifferent parts of the body internally. She agreed with thesuggestion that hypovolemic shock may lead to multiple organfailure. According to her, first 48 hours are most critical. Herevidence and questions put to her indicate that the condition ofthe patient was worsen gradually. Difficulty in breathing andgasping was noticed on the day on which Sarika succumbed.According to her, it was her mistake to record in the medicalpapers that police officer recorded the statement of Sarika.Further, considering the entire evidence on record, we do find itto be a mistake. She gave endorsement about fitness of Sarikato make a statement. The questions put to P.W.5 Sampat alsoindicate that the defence admitted his visit to the hospital. Itwas even suggested to him that he noticed ink on the rightthumb of the deceased while he obtained her thumb impression Criminal Appeal No.469/2018:: 53 ::on the statement-cum-dying-declaration recorded by him. Thesame indicates the statement of deceased was recorded beforehe too recorded her statement.65.P.W.4 Dr. Pushpa was a treading doctor. She waspresent all along. During the patient’s admission to the hospitaluntil her both of the D.Ds. were recorded by P.W.1 Sanjay andP.W.5 Sampat she had examined the patient and certified inwriting the patient to have been fit to make a statement. We donot find any reason to disbelieve the evidence of P.W.5 Sampat.DYING DECLARATION (2) : 66.P.W.1 Sanjay, Executive Magistrate was given arequisition letter (Exh.60) by P.H.C. Sampat (P.W.5) to recordstatement of patient Sarika admitted to Civil Hospital. The saidrequisition has been tendered in evidence by P.W.1 Sanjayhimself. True, it does not bear the timing by which he receivedthe same on 9th March. We find him to be disinterestedwitness. After having performed his some official work, hereached the hospital. He met P.W.4 Dr. Pushpa there. He gaveher a letter (Exh.67) with a requisition to examine Sarika andstate whether she was conscious oriented to make statement.The said letter is also on record. P.W.4 Dr. Pushpa gave