Mr. Mahesh P. Kale, Advocate for the AppellantMrs v. S. Choudhari, APP for the
Case Details
2024:BHC-AUG:10245-DB 1CriAppeal-149-2020.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 149 OF 2020WITHCRIMINAL APPLICATION NO. 4206 OF 2019Ratan s/o Chandu DhawaleAge: 43 years, Occu: Security Guard,R/o: Patoda, Tq. Naigaon,Dist. Nanded at Present ND 116,Near Tehre Jwellers, Hudco,Dist. Nanded… Appellant [Original Accused]VersusThe State of MaharashtraThrough Police Station Nanded Gramin,Nanded, Tq. & Dist. Nanded… Respondent…Mr. Mahesh P. Kale, Advocate for the AppellantMrs. V. S. Choudhari, APP for the Respondent - State…CORAM : R. G. AVACHAT & NEERAJ P. DHOTE, JJ.Reserved on : 04th April, 2024Pronounced on : 10th May, 2024JUDGMENT : [PER NEERAJ P. DHOTE, J.] 1.This Appeal under Section 374 [2] of the Code ofCriminal Procedure, 1973 [hereinafter referred to as ‘Cr.PC’for short] is directed against the Judgment and Order dated11/09/2018, passed by the learned Additional Sessions Judge,Nanded, in Sessions Case No.104/2015, convicting theAppellant for the offence punishable under Section 302 of theIndian Penal Code, 1860 [hereinafter referred to as ‘IPC’ forshort] for causing death of his wife and daughter andsentencing him to suffer imprisonment for life and to pay fne 2CriAppeal-149-2020.odtof Rs.1000/-, in default, to suffer rigorous imprisonment forthree months, for each death.[2. The Prosecution’s case as revealed from the Police Report isas under:2.1The Appellant was married to Gangasagar [hereinafterreferred as Deceased Wife] in the year 2003. Out of theirwedlock, they had a Daughter – Chaitanya [hereinafterreferred as Deceased Daughter]. The Appellant was adrunkard. On 14/04/2015 at around 17:30 hours, the motherof Deceased Wife had come to the Appellant’s house. TheAppellant objected to her coming at his house regularly. TheAppellant had consumed liquor and behaved in abusivemanner and so Deceased – Wife’s mother left his house. Onthat count, quarrel took place between the Appellant andDeceased Wife. The Appellant beat her and poured kerosenefrom the Can which was available in his house on DeceasedWife and Deceased Daughter and set them on fre with amatchstick. Both of them screamed. The neighbourers cameon hearing their screams and doused the fre by pouringwater. Both the injured were taken to the Hospital where theywere treated. Their statements came to be recorded by thePolice and the Special Judicial Magistrate. Crime came to beregistered against the Appellant for the offence punishableunder Sections 307, 323 and 504 of IPC with the NandedRural Police Station vide Crime No.95/2015. The spotpanchnama came to be drawn. Both the injured succumbed tothe burn injuries. Section 302 of IPC came to be added in thesaid Crime in place of Section 307 of IPC.
Legal Reasoning
3CriAppeal-149-2020.odt2.2The Investigating Offcer performed the Inquest andreferred both the dead bodies for Postmortem. ThePostmortem came to be conducted on both the dead bodies.The cause of death of the Deceased Wife was ‘shock due toburns’ and cause of death of the Deceased Daughter was‘septicemia due to burns’. The Appellant came to be arrested.The statement of witnesses came to be recorded. Themuddemal seized during the course of investigation wasreferred for chemical analysis. On completion of theinvestigation, the Appellant came to be Charge-sheeted.3.On committal, the learned Sessions Court framed theCharge against the Appellant for the offence punishable underSections 302 and 504 of IPC at Exhibit – 03, to which, theAppellant pleaded not guilty and claimed to be tried. To provethe Charge, the Prosecution examined in all eleven [11]witnesses and brought on record the Dying Declarations,Inquests, Postmortem reports, Spot Panchnama, ArrestPanchnama, communications by the Investigating Offcer withthe Chemical Laboratory, CA reports and Medico Legal[Injury] Certifcate of the Appellant etc.4.After the Prosecution closed it’s evidence, theAppellant’s statement came to be recorded under Section313[1][b] of Cr.PC. The Appellant denied the Prosecution’scase and evidence. According to the Appellant, his DeceasedWife poured kerosene on herself and on her DeceasedDaughter and ignited the fre. According to him, DeceasedWife lodged complaint against him and his relatives for theoffences punishable under Section 498 [A] of IPC, which wassettled on the condition that she will not attempt suicide and 4CriAppeal-149-2020.odthe should stop drinking. The learned Trial Court, afterappreciating the evidence on record, passed the impugnedJudgment and Order.5.Heard the learned Advocate for the Appellant andlearned APP for Respondent – State. Scrutinized the evidenceon record.6.It is submitted by the learned Advocate for the Appellantthat the Dying Declarations cannot be relied as they are theoutcome of tutoring. No procedure was followed whilerecording the Dying Declarations. The Dying Declarations arerecorded belatedly and they were the outcome of tutoring.There are inconsistencies in the Dying Declarations. There isno evidence to show that it was the Homicidal Death and theevidence on record show that self-immolation by wife with thegirl cannot be ruled out. No independent witness is examined,though the house where the incident took place was such thatit was possible for the neighbourers to see what washappening inside the house. In the alternative, he submittedthat the incident, if accepted as Homicidal Death, the DyingDeclaration show that there was quarrel between theAppellant and his Deceased Wife as his mother-in-law hadcome to his house. Due to grave and sudden provocation, theAppellant poured kerosene on his wife and set her on fre andin that very event, his Deceased Daughter got burnt. TheAppellant tried to save them and he also suffered burninjuries. The Appellant helped them shift to the Hospital.Thus, the offence would be scaled down under Section 304[Part-II] of IPC as there was no intention to kill. He relied onthe Judgments, which would be considered in later part of 5CriAppeal-149-2020.odtthis Judgment.7.It is submitted by the learned APP that the evidence ofPW – 9 [Kabirdas Madhav Lohkare] and PW – 10 [ChitralekhaTaterao Kamble] show that there was immediate oral DyingDeclaration to them by the Deceased Wife. All the DyingDeclarations are consistent on material aspects. The evidenceon record do not show tutoring. There is evidence of theDoctor, who examined both the injured and certifed theirftness to give the statements / Dying Declarations. It issubmitted that the conviction can be based on the DyingDeclarations and the defence’s version that it was the suicideis not acceptable. She relied on the Judgments, which wouldbe considered in later part of this Judgment.8.Before adverting to the case in hand, the Judgmentsrelied upon by the learned Advocate for the Appellant andlearned APP for the Respondent – State are considered.Judgments cited by the learned Advocate for the Appellant[i] Anil Laxman Hichami Vs. State of Maharashtra; 2016 [3]ABR [Cri.] 317, wherein, as per the statement / DyingDeclarations of injured / deceased, the Appellant / Accusedcalled him to his house. Accordingly, he went there, where adispute arose over some domestic reason. Therefore, in a ft ofanger, the Appellant poured kerosene on the victim therein bypushing him outside his house and thereafter set him ablaze.The Court found that the injured was not in a position todisclose anything and in fact, he did not state anything to thewitness and therefore, the Dying Declarations were found notreliable. The evidence of Prosecution’s witnesses was 6CriAppeal-149-2020.odtdiscarded in respect of oral Dying Declarations and nonexamination of the injured by the Doctors before recordingthe Dying Declarations. The Appeal was allowed and theconviction for the offence of Murder was set aside.[ii]Dattatraya Vs. The State of Maharashtra, in CriminalAppeal No.666/2012 delivered by the Hon’ble Supreme Courtof India on 01/02/2024, wherein, the husband, on the fatefulnight came home in an inebriated state. He picked up fghtwith his wife while she was cooking food and poured keroseneon her and as the stove burst, the wife suffered 98% burninjuries, to which, she succumbed. Considering the evidence,the Hon’ble Court came to the conclusion that under the givenfacts and circumstances of the case, it would not be a case ofmurder but of culpable homicide not amounting to murder. Asthe act of Appellant therein was not premeditated, but was aresult of sudden fght and quarrel in the heat of passion, theconviction was brought down for the offence punishable underSection 304(II) of IPC.[iii] Uttam Vs. State of Maharashtra; AIR Online 2022 SC 296,wherein, beneft of doubt was given to the Accused / Appellanttherein as the testimonies of the witnesses were doubted dueto diametrically different version of the reasons that led to theincident and Dying Declarations given by the victim atdifferent times were found to be doubtful and she suffered93% burn injuries and could not have been mentally andphysically ft to make statement. It is further observed that itis not necessary that in every case a Dying Declaration oughtto be corroborated with material evidence, whether ocular orotherwise. It is rather a rule of prudence that courts seek 7CriAppeal-149-2020.odtvalidation of the Dying Declaration from attending facts,circumstances, and other evidence brought on record. Incases where multiple Dying Declarations exist, each one ofthem must be examined with care and caution. Only aftersatisfying itself as to which of the Dying Declarations appearsto be free from suspicious circumstances and has been madevoluntarily, should the court accept it. A certifcate by thedoctor stating that the declarant was ft to make a statementis considered a rule of caution to establish the truthfulness ofthe deceased’s statement. If a Dying Declaration suffers fromany infrmity, it cannot be the sole basis for convicting theaccused. Under such circumstances, the court must step backand consider whether the cumulative factors in the case makeit diffcult to rely solely on the said Dying Declaration. A dyingdeclaration recorded by a magistrate, being an uninterestedwitness and a respected offcer, without any circumstances ormaterial to suspect animus against the accused or an interestin fabricating a Dying Declaration, should not be doubted.[iv]Irfan Alias Naka Vs. State of Uttar Pradesh; AIR Online2023 SC 661, wherein, various earlier decisions of the Hon’bleApex Court and Privy Counsel were considered and the principlesin respect of Dying Declarations have been reiterated and it isobserved as follows:“62 There is no hard and fast rule for determining when a dyingdeclaration should be accepted; the duty of the Court is to decide thisquestion in the facts and surrounding circumstances of the case andbe fully convinced of the truthfulness of the same. Certain factorsbelow reproduced can be considered to determine the same, however,they will only affect the weight of the dying declaration and not itsadmissibility: -[1] Whether the person making the statement was in expectation ofdeath?[ii] Whether the dying declaration was made at the earliestopportunity? "Rule of First Opportunity" 8CriAppeal-149-2020.odt[iii] Whether there is any reasonable suspicion to believe the dyingdeclaration was put in the mouth of the dying person?[iv] Whether the dying declaration was a product of prompting,tutoring or leading at the instance of police or any interested party?[v] Whether the statement was not recorded properly?[vi] Whether, the dying declarant had opportunity to clearly observethe incident?[vii] Whether, the dying declaration has been consistent throughout?[viii] Whether, the dying declaration in itself is a manifestation /fction of the dying personss imagination of what he thinkstranspired?[ix] Whether, the dying declaration was itself voluntary?[x] In case of multiple dying declarations, whether, the frst oneinspires truth and consistent with the other dying declaration?[xi] Whether, as per the injuries, it would have been impossible for thedeceased to make a dying declaration?[63] It is the duty of the prosecution to establish the charge againstthe accused beyond the reasonable doubt. The beneft of doubt mustalways go in favour of the accused. It is true that dying declaration isa substantive piece of evidence to be relied on provided it is provedthat the same was voluntary and truthful and the victim was in a ftstate of mind. It is just not enough for the court to say that the dyingdeclaration is reliable as the accused is named in the dyingdeclaration as the assailant.”Judgments cited by the learned APP[i] Kundula Bala Subrahmanyam and Another Vs. State ofAndhra Pradesh; [1993] 2 SCC 684, wherein, Section 32 of theEvidence Act is considered and it is observed as follows:“18. Section 32[1] of the Evidence Act is an exception to the generalrule that hearsay evidence is not admissible evidence and unlessevidence is tested by cross-examination, it is not credit-worthy. UnderSection 32, when a statement is made by a person, as to the cause ofdeath or as to any of the circumstances which result in his death, incases in which the cause of that personss death comes into question,such a statement, oral or in writing, made by the deceased to thewitness is a relevant fact and is admissible in evidence. The statementmade by the deceased, called the dying declaration, falls in thatcategory provided it has been made by the deceased while in a ftmental condition. A dying declaration made by person on the verge ofhis death has a special sanctity as at that solemn moment, a person ismost unlikely to make any untrue statement. The shadow of 9CriAppeal-149-2020.odtimpending death is by itself the guarantee of the truth of thestatement made by the deceased regarding the causes orcircumstances leading to his death. A dying declaration, therefore,enjoys almost a sacrosanct status, as a piece of evidence, coming as itdoes from the mouth of the deceased victim. Once the statement of thedying person and the evidence of the witnesses testifying to the samepasses the test of careful scrutiny of the courts, it becomes a veryimportant and a reliable piece of evidence and if the court is satisfedthat the dying declaration is true and free from any embellishmentsuch a dying declaration, by itself, can be suffcient for recordingconviction even without looking for any corroboration. If there aremore than one dying declarations, then the court has also toscrutinise all the dying declarations to fnd out if each one of thesepasses the test of being trustworthy. The Court must further fnd outwhether the different dying declarations are consistent with eachother in material particulars before accepting and relying upon thesame. …. ….. ….. ….. ….. ……. ……. ……. ……. …….. …….. ……. ……. ……. ……...”[ii] The State of UP Vs. Veerpal; AIR online 2022 SC 79,wherein, the Dying Declarations were found to be reliableand were believed and the order of acquittal was set aside,after considering the law relating to the Dying Declarationsin the previous Judgments in the case of Laxman Vs. Stateof Maharashtra [AIR 2002 SC 2973] and Jabir Singh Vs.State [NCT of Delhi] [AIR 2019 SC 4321] and other cases.09.The principles laid down in the above referredJudgments are settled.10.Now, we advert to the case in hand. As seen from theevidence available on record and particularly, tenor ofcross-examination of the witnesses, admitting the SpotPanchnama at Exhibit – 13 and admitting the Inquest ofDeceased Wife at Exhibits – 14 / 65 by the Appellant,following are the aspects, which are either admitted or notin dispute:[i] Deceased – Gangasagar was the wife of Appellant.[ii] Deceased – Chaitanya was the daughter of Appellant.[iii] Spot of incident is residential house of Deceased and
Legal Reasoning
10CriAppeal-149-2020.odtAppellant.[iv] Gangasagar and Chaitanya died of burn injuries.11. The evidence of PW – 5 [Dr. Santosh HarishchandraBhosle] show that on 16/04/2015, he was working as theAssistant Professor in the Department of ForensicMedicine, Government Medical College, Nanded. On thatday, the dead body of a female aged 27 years [DeceasedWife] was brought for Postmortem. He along with Dr. S. S.Patil performed the Postmortem on the dead body. Onexternal examination, the following injuries were noted inColumn No.17 of the Postmortem report:“1] Superfcial to deep burns present over following parts of bodywith reddening, sooty blackening, peeling of skin at places withformation of blisters over lower limbs at place margins infamed.Distribution of burns is as follows:Area affectedPercentageSparedHead, neck & face5%Scalp and area around nose and left eyeUpper right limb9%Palmer ridges presentUpper left limb9%Palmer ridges presentBack 15%Lower backChest and abdomen15%Lower part of abdomen and at placesRight lower limb14%Foot and front of thigh lower partLeft lower limb12%Foot and front of thigh and upperpart of legPerineum and genitals 00%WholeTotal79%mixed burns12. His evidence show that there was injury totherapeutic surgical venesection mark over right ankle,medial aspect. All the injuries were antemortem in nature.Injury No.1 in Column No.17 was suffcient to cause deathin ordinary course. He opined that the cause of death was“Shock due to burns”. The Postmortem report at Exhibit – 11CriAppeal-149-2020.odt35 is brought on record.13.His cross-examination show that he was unable tocomment whether the burns were suicidal or homicidal oraccidental. His evidence show that shock is caused due toloss of body fuids i.e. hypovolenic shock.14.The evidence of PW – 7 [Dr. Rahul Vasant Jadhav]show that on 21/04/2015, he was working as Post GraduateStudent at Shankarrao Chavan Medical College andHospital, Nanded. He received inquest and requisition toperform Postmortem of the body of Chaitanya [DeceasedDaughter]. He and Dr. N. P. Zanzad performed thePostmortem examination and found the following injuries,which were noted in Column No.17 of the Postmortemreport at Exhibit – 47.“1] Superfcial to deep burns present over body surface area withpeeling, blackening of skin with yellowish green foul smelling pusat places.2] Therapeutic central venous line present over right side of neck.3] Blue ink stain present over right thumb.Area PercentageSparedHead, neck face trunk5%upper part of face an scalpAnterior18%Posterior18%Upper Limb Right6%Ventral aspect at places and palmLeft Lower Limb9%Right6%Left 6%knee belowGenitals1%knee belowTotal70%mixed burns15.He opined that the cause of death was “Septicemiadue to burns”. The injuries mentioned in Column No.17were suffcient to cause death of a person in ordinary
Decision
12CriAppeal-149-2020.odtcourse and they were antemortem.16.It has come in his cross-examination that, he wasunable to opine whether the death was suicidal oraccidental or otherwise. He further deposed that in theinstant case, it was diffcult to opine regarding the nature ofdeath as the deceased was admitted to the Hospital for sixdays and the injuries may change due to infection ortreatment. He denied that his opinion regarding cause ofdeath was incorrect.17.In view of the above evidence available on record, it isestablished by the Prosecution that, the Appellant’s wife –Gangasagar and Daughter – Chaitanya died of burn injuriessuffered in their residential house.18.The Prosecution’s case primarily rests on the DyingDeclarations of Deceased – Wife and Deceased Daughter.There are fve [5] Dying Declarations brought on record bythe Prosecution, out of which, three [3] are of DeceasedDaughter and two [2] are of Deceased Wife. DeceasedDaughter’s two [2] Dying Declarations were recorded bythe Police and one [1] was recorded by the Special JudicialMagistrate. Deceased Wife’s one [1] Dying Declaration wasrecorded by the Police and another Dying Declaration wasrecorded by the Special Judicial Magistrate. The relevantevidence on recording of the Dying Declarations is that ofPW – 2 [Dr. Vilas Shantilal Chavan], PW - 3 [ShivajiMahajan Tondewar], Police Offcer, PW – 4 [RamchandraTukaram Karpe], Policemen, PW – 6 [Shaikh HameedShaikh Hyder], Special Judicial Magistrate and PW - 11[Parshuram Kishan Marade], Investigating Offcer. 13CriAppeal-149-2020.odt19.The evidence of PW – 2 [Dr. Vilas Shantilal Chavan]show that he was attached to the Surgery Department ofDr. Shankarrao Chavan, Government Medical College,Nanded and he was working as Resident Doctor. Patient’snamed Gangasagar [Deceased Wife] and Chaitanya[Deceased Daughter] were admitted in the said Hospital inburns ward. His evidence show that on 14/04/2015,16/04/2015 and 20/04/2015, he examined DeceasedDaughter before recording her statement and afterrecording her statement by the Police and Special JudicialMagistrate and at all those times, he found her to beconscious, oriented and mentally ft before recording herstatement and during recording her statement. Hisevidence show that he examined Deceased Wife on15/04/2015 before and after recording her statement bythe Police and Special Judicial Magistrate and at all thosetimes, he found her to be conscious, oriented and mentallyft before recording her statement and during recording herstatement. His cross-examination show that DeceasedDaughter suffered 74% burns and Deceased Wife suffered88% burns and both of them were in trauma. Traumaaffects orientation of the patient and mental ftness of thepatients may be affected in trauma. His cross-examinationfurther show that the pain killer Diclofanec Injections wereadministered to these patients along with antibiotic. Thesaid drug Diclofanec was administered in order to alleviatethe pain mediators in the body.20.From this medical evidence, it becomes clear that,both the injured were admitted in the Hospital and they 14CriAppeal-149-2020.odtwere under going treatment and were in trauma. Thoughthis witness deposed about mental ftness of both theinjured, his evidence show that trauma affects orientationof the patients and mental ftness. Thus, from the evidenceof this witness, it is seen that, the possibility of affecting theorientation and mental ftness of said two patients at therelevant time cannot be ruled out. The evidence of thisDoctor witness leaves room for doubt in respect of mentalftness and orientation of Deceased Wife and DeceasedDaughter before and during recording their statements. Hisevidence does not give the required assurance about themental ftness and orientation of both the said patients atthe relevant time. 21.PW – 3 [Shivaji Mahajan Tondewar] show that he wasattached to the Police Station, Nanded Gramin as ASI andon 14/04/2015, he was directed by the Police Inspector [P.I]to record the statement of injured patient DeceasedDaughter and he went to SGGS Hospital, Nanded and metPW – 2 [Dr.Vilas Shantilal Chavan] and recorded thestatement of Deceased Daughter, which was at Exhibit – 28,as per the say of patient. 22.The evidence of PW – 11 [Parshuram Kishan Marade],who was assigned the investigation of the Crime show thathe recorded the statement of patient Deceased Wife as perher say, which was at Exhibit – 64 and recorded thestatement of patient Deceased Daughter which was atExhibit – 66. 23.The evidence of PW – 6 [Shaikh Hameed ShaikhHyder] show that he was working as Assistant Account and 15CriAppeal-149-2020.odtAudit Offcer [Local Fund] Zilla Parishad, Nanded. He wasconferred with the powers of Special Judicial Magistratefor a period of one year vide Government Resolution dated23/09/2014. His evidence show that as per the requisitionof PW – 3 [Shivaji Mahajan Tondewar], on 14/04/2015, herecorded the statement of Deceased Wife, which was atExhibit – 40 as per her say in the Hospital. His furtherevidence show that as per the requisition of PW – 11[Parshuram Kishan Marade], he recorded the statement ofDeceased Daughter, which was at Exhibit - 43.24.The frst statement / Dying Declaration as is evidentfrom the evidence on record is that of Deceased Daughter,which is dated 14/04/2015. As per that statement, hergrandmother Annapurna had come to their house on14/04/2015 for going to the procession on account of birthanniversary of Dr. Babasaheb Ambedkar. She and hermother [Deceased Wife] got ready for going to the saidprocession. Her father [Appellant] was consuming liquor inthe house. Her mother asked her father to get ready at theearliest for going to the procession. At that time, theAppellant asked her why her mother was coming to theirhouse every day and whether it was her [Annapurnabai’s]father’s property and abused. As they expressed that theywill not go for the procession, her grandmother left theirhouse. Her father slapped and beat her mother by fst. Atthat time, her mother said that if he wants to beat her, heshould do it. Immediately, her father abused and beat herand poured kerosene on her mother which was in the Canand by pulling her, poured kerosene on her person and 16CriAppeal-149-2020.odtignited fre by a matchstick. When they screamed, theAppellant poured water and doused the fre. Due to pouringof kerosene and igniting fre, her clothes got burnt and shesuffered burn injuries on her ‘chest, back, stomach, neck,both hands, mouth and both the thighs. Her mother alsosuffered burn injuries on her ‘back, stomach, both hands,neck, mouth, chest and both the legs’.25.In her second supplementary statement / DyingDeclaration dated 16/04/2015, Deceased Daughter statedthat, around 5:30 pm on 14/04/2015, her grandmother –Annapurnabai came to their house for accompanying themto the procession on the occasion birth anniversary of Dr.Babasaheb Ambedkar. She and her mother [Deceased Wife]got ready for going to the said procession. Her father wasconsuming liquor in the house. Her mother asked herfather [Appellant] to get ready quickly for going to theprocession. On that, her father questioned as to why hermother visits their house every day and whether it was her[Annapurnabai’s] father’s property and used abusivewords. As they said that they will not go for the procession,her grandmother left. Thereafter, her father assaulted hermother by slapping and fsts. Her mother said that he canbeat her, if you want to. Her father said that he willeliminate her and her daughter and used abusive wordsand beat her mother. Her father poured kerosene from Can,which was kept in their house on her mother and on herperson and ignited fre by using a matchstick. After theycame out of their house by screaming, the neighbourers putwater on their person and they also got the water poured 17CriAppeal-149-2020.odtby themselves on their person and the fre was doused. Dueto the said fre, her clothes got burnt and she suffered burninjuries on her ‘chest, back, stomach, neck, both hands,mouth and both thighs’ and due to the fre, her mothersuffered burn injuries on her ‘whole back, stomach, bothhands, neck, mouth, chest and both legs’ and she and hermother were admitted to the Government Hospital atNanded.The statement further states that, on16/04/2015, she learnt that her mother expired. Hermother died because her father poured kerosene on herand set her ablaze. Her father poured kerosene on hermother and set her on fre in her presence and killed her.The statement further states that, it was givenwith the consent and in the presence of her grandmother –Annapurnabai. According to her, it was true and was readover to her. 26.In her third statement, Deceased Daughter, which wasrecorded by PW – 6 [Shaikh Hameed Shaikh Hyder],Special Judicial Magistrate on 20/04/2015 is in question -answer form. The relevant questions and answers are asunder : -Question : How the incident took place? Tell in detail?Answer : 14/04/2015 was the Bhim Jayanti. My fatherquarreled on that day, as my grandmother came to ourhouse. The reason of quarrel with grandmother andmother was not known. During quarrel, my father in angerbrought a four liter plastic Can having kerosene and saidthat he will fnish both of us and poured kerosene on my 18CriAppeal-149-2020.odtmother and on my person and set us on fre by amatchstick. My father was not a human being and was adevil. Question : Whether they were burnt intentionally ?Answer : Yes. Father intentionally caused burn to me andmy mother. Father’s name was Ratan ChandrakantDhawale. He fghts with my mother every day afterconsuming liquor and used to beat my mother by handsand legs in anger after consuming liquor. He was short-tempered by nature. He tried to kill me and my mother. Heshould be given severe punishment. While burning, me andmy mother jumped in the water tank [ik.;kpk gkSn] and dousedthe fre. My father also tried to douse the fre. His hands gotburnt. By an ambulance, we were hospitalized andtreatment is going on. I have given the statement aftertaking oath in the name of God and it is true and correct.The statement was written as per my say and it was trueand correct. The statement was written from 10:30 am. to11:05 am. and it was completely read-over to me. I gavemy right hand thumb after it was read-over to me. 27.The frst statement of Deceased Wife was dated was15/04/2015, recorded by PW – 11 [Parshuram KishanMarade], who was the Investigating Offcer. Her saidstatement, which was at Exhibit – 64, show that she statedas follows:-Yesterday on 14/04/2015 around 5:00 pm, me and mydaughter got ready by wearing new clothes as there wasbirth anniversary of Dr. Babasaheb Ambedkar. At thattime, my husband – Ratanakar [Appellant] came home 19CriAppeal-149-2020.odtfrom the duty. Before arrival of my husband, I had calledmy mother for going to the procession. My husbandremoved two bottles of liquor from his pocket and heconsumed one bottle completely and after consuming halfof the second bottle started abusing me. By saying, whatbusiness my mother was having here and why she comes toour house and he started beating me. Seeing this mothersaid that she will leave and they should not fght and sheleft. Even prior to this my husband regularly used to beatme by consuming liquor. After my mother left, my husbandgot more enraged and said that he will kill me and also mydaughter and poured kerosene from the Can, which waskept in the house, on me and my daughter, by saying thathe will fnish me. My husband set me and my daughter onfre by using a matchstick. As I got fre, me and mydaughter came out screaming and people residing on thefront side poured water on my person and doused the fre.While setting me on fre my husband’s hands also gotburnt. However, he did not make any attempt to douse thefre. On hearing screams, our neighbourers came andimmediately called my mother. As my mother saw that meand my daughter were burnt, she immediately went downfor getting Rickshaw for shifting me to the Hospital and shecame home. She was accompanied with Vitthal Sabne, myelder sister - Chitralekh, father and brother – Mahesh.Somebody phoned the Police and Ambulance and I wasbrought to the Government Hospital, Nanded in theAmbulance and I and my daughter were admitted fortreatment. My above statement was written as per my say. It was 20CriAppeal-149-2020.odtread-over to me. It was true and correct as per my say. 28.The second statement / Dying Declaration of DeceasedWife, which was recorded by PW – 6 [Shaikh HameedShaikh Hyder], the Special Judicial Magistrate on15/04/2015, was in question - answer form. The relevantquestions and answers are as under:Question : When the incident took place and where ithappened?Answer : The incident occurred in husband’s house. Ithappened on 14/04/2015 at 5:00 pm. Question : Who were present at home at the time ofincident?Answer : I, my husband and my daughter were present. Mydaughter witnessed the complete incident and theneighbourers had witnessed the incident with their eyes. Question : How the incident happened? Tell in detail?Answer : Yesterday was the Bhim Jayanti. The food wascooked in the morning. After coming home in the afternoonat 3:30, he started consuming liquor, which was brought aday before and abused me, in the meanwhile, my mothercame. On seeing my mother he started quarreling with meand started abusing. Mother asked why fghting as I cameand left by saying not to fght. After mother left, I askedwhy he quarreled after seeing my mother. On seeing this,he beat me with legs and fsts. I started weeping. Again heabused and said he will kill me and poured three literskerosene from the Can of fve liters on me and whileigniting the fre, our daughter came in between, the 21CriAppeal-149-2020.odtremaining was poured over daughter and ignited the fre bymatchstick and went outside. By seeing that the daughterwas burning, he doused the fre by putting water. He didnot attempt to douse the fre on me. Polyester saree was onmy person which stuck to my body and me and mydaughter got burnt. Question : Whether husband intentionally caused burns?Answer : Yes. The husband tried to intentionally kill me. Isuspect that he was having relations with someone fromoutside. Question : Who saved you?Answer : The neighbourers saved me by pouring water. Heinformed the mother, who was present outside. Mother,aunt and son came and they all admitted in the Hospital byAmbulance. Statement was given honestly and it was read-over to me and I read it. I am ready to put my thumbimpression of right leg. The statement was true andcorrect. The statement was started in the afternoon at03:05 pm and completed in the afternoon at 03:35 pm.29.The scrutiny of the above referred statements / DyingDeclarations of Deceased Daughter and Deceased Wife showthat there are inconsistencies inter se. In her frststatement / Dying Declaration, Deceased Daughter statedthat, after pouring kerosene and igniting fre by theAppellant, they screamed and the Appellant put water overthem and doused the fre. In her second statement / DyingDeclaration, she stated that, after the Appellant pouredkerosene and set them on fre, they screamed and came out 22CriAppeal-149-2020.odtof the house and neighbourers doused the fre by pouringwater over them and they also poured the water onthemselves. In her third statement / Dying Declaration, shestated that, after the Appellant poured kerosene and setthem on fre, they both jumped into the water tank and theAppellant also tried to douse the fre and he burnt hishands. Thus, there are three different versions by deceaseddaughter in her three statements / Dying Declarations.30.In her frst statement / Dying Declaration theDeceased Wife, she stated that, after the Appellant pouredkerosene and set them on fre, they shouted andneighbourers put water over them and doused the fre andthe Appellant did not try to douse the fre and while settingthem on fre, the Appellant’s hands got burnt. In her secondstatement / Dying Declaration, she stated that, afterpouring the kerosene and setting them on fre, theAppellant put the water over the daughter and he did nottry to save her and she was suspecting that the Appellantwas having extra marital affairs. Here also two differentversions are stated by Deceased - Gangasagar in her twostatements.31. True it is that, in all the statements, both the deceasedstated about pouring kerosene and setting them on fre bythe Appellant, however, on each count, they gave differentversions in respect of dousing the fre. It is, thus, clear thatthe statements / Dying Declarations are inconsistent toeach other and therefore, requires corroboration.32.The Prosecution examined the father and sister of 23CriAppeal-149-2020.odtdeceased wife as PW – 9 [Kabirdas Madhav Lohkare] andPW - 10 [Chitralekha Taterao Kamble] respectively. Theirevidence show that, they both were the resident of sametown and they both reached on the spot of incident in notime, as they got the information that both [Deceased Wifeand Deceased Daughter] were burnt. Their evidence showthat they shifted both the injured to the Hospital in theAmbulance. According to them, after they reached at theplace of incident, they talked with the Deceased Wife andshe told that, the Appellant poured kerosene on both ofthem and set them on fre. Though, the oral DyingDeclaration that the Appellant set them on fre was madebefore them, strangely they did not approach the Police.Secondly, they did not give the history in that respect inthe Hospital where both the injured were admitted. Nothingof that sort was done by them. 33.The evidence of PW - 2 [Dr. Vilas Shantilal Chavan]show that while giving evidence he had brought the papersrelating to admission and treatment of Deceased Wife andDeceased Daughter. In clear terms, he deposed that thehistory recorded in the admission papers of both thepatients is of burns only and not Homicidal burns. Thisclearly show that despite oral Dying Declaration byDeceased Wife against the Appellant to these two witnesseswho were the father and sister, no such history was givenby them at the time of admission in the Hospital. Theevidence of PW – 10 [Chitralekha Taterao Kamble] showthat she was Graduate and her husband was an Advocate.However, they remained silent despite Deceased Wife gaveoral Dying Declaration against the Appellant. Thus, this 24CriAppeal-149-2020.odtleads to an adverse inference that no such oral DyingDeclaration was made by Deceased Wife to these twowitnesses.34.It has come in the evidence of PW – 9 [KabirdasMadhav Lohkare] that while admitting Deceased Wife andDeceased Daughter, he, his wife, daughter – PW – 10[Chitralekha Taterao Kamble] were together. Further, hisshow that his wife and his another daughter – PW - 10[Chitralekha Taterao Kamble] were allowed to be with thepatients in the ward. He deposed in clear terms that rightfrom the day of admission to the death of both of them i.e.[Deceased Wife and Deceased Daughter], PW – 10[Chitralekha Taterao Kamble] was with them. His evidenceshow that he also visited the Hospital during admission ofboth of them. Further the evidence of PW – 10 [ChitralekhaTaterao Kamble] show that she and her motheraccompanied Deceased Daughter and Deceased Wife in theHospital and she was with Deceased Daughter till herdeath. In clear terms, she deposed that, she, her mother,her father and maternal aunt – Parbhavati and herhusband and their son – Raju met Deceased Wife andDeceased Daughter in the Hospital. Her evidence furthershow that their relatives kept on visiting and in themeanwhile, the offcials recorded statements of DeceasedWife and Deceased Daughter.35.The above discussed evidence of two witnesses whowere the father and sister of Deceased Wife established thatthey and mother of Deceased Wife were in constantcompany of both the injured right from their admission to 25CriAppeal-149-2020.odtthe Hospital till their death. Suggestion is given by thedefence that both the injured were not ready to givestatement that the Appellant poured kerosene on them andset them ablaze, however, they made them to give suchstatement. From this clear evidence on record, the strongpossibility of tutoring the injured cannot be ruled out. Thesupplementary statement / Dying Declaration of DeceasedDaughter dated 16/04/2015 show that it was recorded withthe consent and in presence of her grandmother. PW – 11[Parshuram Kishan Marade], the Investigating Offcer inhis evidence, admitted that the statement of DeceasedDaughter, which was at Exhibit – 66 i.e. supplementarystatement, was recorded by him in presence ofgrandmother of Deceased Daughter. This again fortifes thepossibility of tutoring the injured. As the evidence clearlyestablished that the statements / Dying Declarations werenot free from tutoring, the Prosecution’s case about thevoluntariness of the aforesaid statement / DyingDeclarations, is required to be seen with doubt.36.There is one more glaring aspect to the case that is,the neighbourers had gathered at the place of incidentwhen they heard screams of the injured, however, none ofthe neighbourers were examined by the Prosecution. Theevidence of PW – 9 [Kabirdas Madhav Lohkare] show thatwhen he and his son – Mahesh and two grandsons reachedat the place of incident, the person by name Vitthal Sabne,Parbhavati Sabne, Raju Sabne Tukaram Pabitwar, RupaliPabitwar and landlord of the Appellant [the owner of thehouse where the incident had taken place] and the nearbyresidents from the locality had gathered. His evidence also 26CriAppeal-149-2020.odtshow that the people who had gathered there tried toextinguish the fre. The evidence of PW - 10 [ChitralekhaTaterao Kamble] also show that on reaching the place ofincident, she came to know that, the neighbourers tried toextinguish the fre. Though the neighbourers and residentsof nearby locality had reached and gathered at the spot ofincident, none of them have been examined by theProsecution. Those were the persons who had reachedearlier in point of time at the place of incident. Theevidence of PW – 11 [Parshuram Kishan Marade] show thathe recorded the statements of witnesses, who were residingin eastern and southern side of the house of Deceased Wife.He also recorded the statements of JaiprakashVishwakarma and Sevan Jaiprakash Vishwakarma, asthey were residing in front of the house of place of theincident and everything was visible from their house andthey extinguished the fre. This aspect further createsshadow of doubt in respect of the Prosecution’s case.37.One another aspect to the case is that, thestatements / Dying Declarations, which are consideredabove, show that mother of Deceased Wife had come to thehouse of Appellant shortly before the incident. This is alsoadmitted by PW – 9 [Kabirdas Madhav Lohkare] that hiswife Annapurnabai had been to the house of his DaughterWife prior to the incident. In his evidence PW – 11[Parshuram Kishan Marade] deposed that Annapurnabai[the mother of Deceased – Wife] was a star witness of thecase and she was having knowledge of most of the facts ofthe case. His evidence also show that he recorded thestatement of Annapurnabai in connection with the matter. 27CriAppeal-149-2020.odtAdmittedly, Annapurnabai is not examined by theProsecution. True it is that, in the evidence of PW – 9[Kabirdas Madhav Lohkare], who is the father of DeceasedWife, he deposed that his wife, [Annapurnabai] sufferedParalytic Stroke prior to six (6) months, in which, her leftleg and left hand were affected and she received thetreatment in the Government Hospital, to which, sheresponded. However, he deposed that she could talk, seeand hear though she was unable to move from one place toanother on her own. From this, it becomes clear that it waspossible for the Prosecution to examine Annapurnabai.This also leads to an adverse inference. 38.It is the Appellant’s case as seen from the tenor ofcross-examination that his deceased wife committedsuicide and also set their Deceased Daughter on fre bypouring kerosene on her. The evidence of PW – 9 [KabirdasMadhav Lohkare] who is none other but the father ofDeceased Wife show that his Deceased Daughter had fledcriminal case against the Appellant for the offencespunishable under Section 498[A] of IPC and he wanted tocontinue the marital tie with the Appellant and he tried tosettle the matter between them. Though he denied thesuggestion that his Daughter attempted to commit suicideby consuming rat poison, he admitted in his cross-examination that the said case under Section 498 [A] ofIPC was settled on certain conditions. He accepted that hisDaughter assured that she will not attempt to commitsuicide and the Appellant assured not to consume liquor.He admitted that Deceased Wife remained pregnant fortwo(2) times after the birth of Deceased – Daughter and on 28CriAppeal-149-2020.odtboth the occasions, her feotus was aborted prematurely.The evidence of PW – 10 [Chitralekha Taterao Kamble] whois the sister of Deceased Wife show that the Appellant wasaddicted to liquor and her sister Deceased Wife wanted thatthe Appellant should quit consuming liquor. She admittedthat as the Appellant did not quit liquor, the dream of hersister Deceased Wife was shattered. Though she deposedthat there was no reason for her sister to commit suicide,she deposed that her sister wanted that the Appellantshould behave properly. From this evidence on record, it isseen that once Deceased Wife attempted suicide.39.There is evidence on record to show that theAppellant suffered 20% Superfcial to Deep Burns over faceand bilateral/upper limbs and he was hospitalized andtreated by General Surgeon. The Medico Legal [Injury]Certifcate of the Appellant issued by the Medical Offcer,SGGS Hospital, Nanded is at Exhibit – 70. This aspect isalso established from the evidence of PW – 11 [ParshuramKishan Marade] who was the Investigating Offcer, wherein,he deposed that the Appellant was admitted to the sameHospital as he had burn injuries on his hand and he wasdischarged on 17/05/2015. Even PW – 9 [Kabirdas MadhavLohkare] in his evidence deposed that he saw that theAppellant – Ratan had suffered injuries to his fngers andthe Appellant was admitted in the Hospital in his presence.This evidence on record has frmly established that theAppellant also suffered burn injuries in the said incident.40.The above discussed evidence on record do not lead tofrmly establish the Charge against the Appellant. The 29CriAppeal-149-2020.odtmultiple Dying Declarations cannot by themselves form thebasis to hold that the Charge is proved for the reason ofinconsistencies therein and presence of close relatives ofDeceased Wife from her maternal side throughout in theHospital posing strong possibility of tutoring both theDeceased. This further lends the Prosecution’s case aboutvolunatriness of statements of injured / Dying Declarationscoupled with the medical evidence that the injured were inTrauma, in shadow of doubt. The other glaring aspects are,not giving the history of Homicidal burns to the Hospital bythe witnesses who admitted the injured to the Hospital andnot reporting the incident to the Police though oral DyingDeclarations were made by Deceased – Wife to them, non-examination of the witnesses who had the opportunity tosee both the Deceased in an injured condition and thosewho went for help. These aspects make us to view the caseof Prosecution with doubt. Further, the clear evidenceindicating prior attempt of suicide by Deceased Wife, hertwo premature abortions and shattering of her hopes /dreams and suffering of burn injuries by the Appellantmakes the defence version. 41.Applying the principles in relation to DyingDeclarations laid down in the Judgments considered above,to the case in hand, in our considered view, it is not possibleto maintain the conviction and sentence recorded by thelearned Trial Court against the Appellant. It is needless tostate that, it is settled position under the law that, incriminal case when two views are possible, the one whichlean or favor the accused is to be adopted. The otherevidence in the nature of CA reports showing the residues 30CriAppeal-149-2020.odtof kerosene on the articles collected during the course ofinvestigation would not by itself suffcient for theProsecution in establishing the Charge. Though the Chargeframed against the Appellant was for the offencepunishable under Sections 302 and 504 of IPC, there is noreference of Section 504 of IPC in the operative order of theimpugned Judgment. Hence, we proceed to pass thefollowing order:ORDER[i] Criminal Appeal is allowed.[ii] The Judgment and Order dated 11/09/2018, passed bythe learned Additional Sessions Judge, Nanded, in SessionsCase No.104/2015 convicting and sentencing the Appellant forthe offence punishable under Sections 302 and 504 of IPC, isquashed and set aside.[iii]The Appellant stands acquitted for the offencepunishable under Sections 302 and 504 of IPC.[iv] The Appellant be released, if not required in any othercase.[v]The fne amount, if deposited by the Appellant, berefunded to him.[vi]The Record and Proceedings be sent back to the learnedTrial Court.[vii] The muddemal be dealt with in accordance with law.42.Criminal Appeal is disposed of accordingly.43.In view of disposal of Criminal Appeal, CriminalApplication also stands disposed of. [NEERAJ P. DHOTE, J.] [R.G. AVACHAT, J.]Sameer