Vishwanath Sonwane vs State of Maharashtra - Criminal Appeal

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Vishwanath S/O. Shamrao Sonwane vs The State Of Maharashtra on 13 March, 2026

2026:BHC-AUG:12912

                                  1                               criapeal1046.19.odt

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                          CRIMINAL APPEAL NO. 1046 OF 2019

          Vishwanath S/o. Shamrao Sonwane,
          Age-56 years, Occu-Agri,
          R/o. Chitalvedhe, Irrigation Colony,
          Tq. Akole, Dist. Ahmednagar                         ...APPELLANT

                      VERSUS

          The State of Maharashtra                            ...RESPONDENT

          Mr. R. K. Temkar, Advocate for the appellant
          Mrs. U. S. Bhosale, APP for the respondents/State
                                             ...
                                              CORAM : RAJNISH R. VYAS, J.
                                              DATE : 13TH MARCH, 2026

          ORAL JUDGMENT : 1.          This is an appeal at the instance of the original accused

          challenging the judgment passed by the Additional Sessions Judge

          Sangamner dated 31-08-22019 in Sessions Case No. 31 of 2016 by which

          the appellant was convicted for commission of offences punishable under [Section 304](https://indiankanoon.org/doc/409589/) of the Indian Penal Code [for short ' [IPC](https://indiankanoon.org/doc/1569253/) '] and directed to

          suffer rigorous imprisonment for 7 years and to pay fine of Rs.10,000/-.

          In default of payment of the fine, he was ordered to suffer simple

          imprisonment for a period of 12 months.

1. In short, it is the case of the prosecution that on the day of 2 criapeal1046.19.odt

the incident, i.e. on 13-01-2016, the accused came under the influence of

liquor, on which the deceased Meerabai/ wife of the accused enquired as

to why he had consumed the liquor, and she would set herself on fire.

Thus the quarrel took place. The accused then asked the victim to pour

kerosene on her. The victim poured kerosene on her and accused ignited

the matchstick and set the deceased on fire. It is this incident which

resulted in setting a criminal law in motion.

1. Heard Mr Temkar, learned Advocate for the appellant and

Mrs Bhosale, learned APP for the respondents/State.

1. According to the Mr. Temkar, learned Advocate for the

appellant, the dying declaration recorded below Exh. 48, so also Exh. 40

are the planted documents. He further submitted that the oral dying

declaration made by the deceased to PW 1 and PW-5 also cannot be

relied upon. He, thus, submitted that in the light of the testimony of PW

2/brother of the deceased, it can be said that the prosecution has not

proved the offence against the accused beyond a reasonable doubt.

1. Per contra, learned APP submitted that both the dying

declarations below Exh.P-40 and Exh-P-48, are consistent and therefore,

cannot be ignored. She submitted that even the oral dying declaration
3 criapeal1046.19.odt

made to PW 1 inspires confidence, and that the dying declaration made to

PW 5 does so as well. Thus, she submitted that the court had awarded the

conviction under Section 304 correctly.

1. The question is regarding the applicability of Section 304 of

the IPC, which speaks about the punishment for culpable homicide not

amounting to murder. Culpable homicide is defined under Section 299 of

the IPC. In this context, the prosecution's evidence is considered.

1. Since it is the case of the prosecution that the deceased was

set on fire, it is necessary to take into consideration the testimony of

prosecution witnesses. The witnesses were required to be examined by

the prosecution, as the accused did not plead guilty to the charge framed

below Exh.5 on 14-06-2017 by the learned Additional Sessions Judge,

Sangamner, which was for commission of offence punishable under Section 302, 34 of the IPC.

1. PW 1-Sheela, examined by the prosecution, has stated that

the deceased was the sister of her husband. The deceased was married to

the accused. She received a phone call from her husband/PW 2 on 14-01-

2016 at about 08.00 pm. who told her that deceased has got burnt and

therefore, PW 1 should visit the hospital accordingly. She went to the
4 criapeal1046.19.odt

hospital, met Meerabai , and had an initial conversation with her.

1. When PW 1 enquired, Meerabai told her that on 13-01-2016,

there was a quarrel between her and her husband, i.e., the accused, who

was under the influence of liquor. She poured kerosene on her person as

the accused had asked her to do so. Thereafter the accused put her on fire

by lighting match stick. The incident took place at her residence. She

deposed that when the incident was narrated to her, an officer from

Rahuri Police Station was present, and the deceased Meerabai had given

the same information to the police in her presence. She also stated that

police recorded her statement, obtained her thumb impression on it. She

stated that on 24-01-2016, Meerabai died.

1. PW 1 was subjected to cross-examination, in which she

admitted that the deceased was illiterate and prior to 15 years of the

incident, the first marriage of the deceased was performed with one Zade

but she did not conceive. before the marriage, the deceased and the

accused were in a relationship, and they belonged to different

communities.

1. Her testimony shows that her husband-PW 2 was having

relation with the police due to his occupation as photographer. On 13-01-
5 criapeal1046.19.odt

2016 at about 11-30 pm, she came to know from her husband that the

accused had taken Meerabai to the hospital in Shendi. She also admitted

that there is difference between two terms ^^tGkyh&tkGyh**. She admitted

that she was informed that Meerabai was burnt, and the accused had tried

to extinguish the fire.

1. PW 1 also stated that Laxman is her distant father-in-law

who got retired as Police Sub-Inspector and his advise is solicited on

occasions . She admitted that, before reaching the Civil Hospital at

Nashik, her husband and Laxman were present at the Hospital, Nashik,

and it was Police Inspector Fatangare who recorded the statement of

Meerabai. She stated that Fatangare reached after some time, after PW 1

reached the Hospital in Nashik. Even the face and lips of Meerabai were

burnt, and the magistrate had also visited to record the statement of

Meerabai. Further, the Magistrate and Fatangare recorded Meerabai's

statement at the same time. She also admitted that before talking to

Meerabai, she had enquired from her husband.

1. In the cross-examination, she admitted that the accused

owned a car and she came to know from the husband that the accused

took Meerabai in his car to Kelungan and met the mother-in-law, i.e.

Heerabai. She deposed that, about a month earlier, she had been told that
6 criapeal1046.19.odt

Heerabai had died. Other suggestion she denied. But she admitted that the

Tahasildar had been to the hospital and asked Meerabai whether she had

any complaint against anybody, to which she replied in the negative.

1. Testimony of aforesaid witness would reveal that, she

reached the hospital when a phone call was received from her husband

and before that her husband and Laxman were present in the Hospital.

Testimony further shows that, when the incident was narrated to her, the

police were also present, as was this witness. The Police have further

obtained the signature of PW 1 on the aforesaid statement. The testimony

further shows that Laxman is a retired Police Sub-Inspector, and his

advice was taken on several occasions. The fact that the Magistrate and

Fatangare recorded the statement of Meerabai at same time is also

admitted by this witness. Thus, it is clear that when the dying declaration

was recorded, not only this witness but also the police from Rajur Police

Station were present. While recording the dying declaration, not only

Fatangare, i.e., PW 4, but also the Executive Magistrate, i.e., PW 7, were

present and recorded it at the same time.

1. PW 2-Navnath is the brother of the deceased, who has

deposed about the earlier marriage of the deceased with Zade and the fact

that she was not conceiving. He stated that he was a photographer and
7 criapeal1046.19.odt

that the deceased's marriage had taken place 2-3 years ago. According to

him, he received a phone call from Jijabai, the wife of his cousin, at about

06.00 pm., who informed him that Meerabai was taken to the hospital at

Shendi in a burnt condition. Accordingly, PW 2 informed his brother,

Pandurang, who went to Chitalvedhe, where the accused's house was

locked. PW 2 then enquired at the police station and came to know that

the deceased had been shifted from Nashik to Shendi. He then, along

with three other persons, went to the hospital in Nashik and found

Meerabai lying in a burnt condition, sleeping, and receiving saline.

1. PW 2 has deposed that on the next morning, his uncle

Laxman/PW5 came to the hospital along with PW 4 and asked Meerabai

as to what happened, on which, she narrated the incident. On being

questioned, Meerabai stated that she had no complaint against her

husband and her brother. PW 2 deposed that Meerabai did not disclose

who lit the matchstick.

1. At this stage, learned APP requested the court to grant

permission to put question to PW 2, as he was not supporting the case of

the prosecution, which was granted.

1. In the cross-examination conducted by the prosecutor, PW 2 8 criapeal1046.19.odt

could not give reason as to why portion mark 'A' in the statement

recorded by the police was written. It is necessary to clarify that the

portion mark 'A' in the testimony was put to PW 6-Investigating Officer,

who has stated that he recorded the said portion as narrated by PW 2.

Record shows that in statement 161 of code of criminal procedure, there

is no bracketed portion marked as portion 'A', but only the portion

marked 'A' is mentioned, further Exh. P-33 is mentioned, and a vertical

line is given. Three sentences are then underlined with red ink, which

reads thus:-

^^rq vaxkoj jkWdsy Vkdwu ?ks o isVowu ?ks] eh ek>k vaxkoj jkWdsy Vkdwu
?ksrys o uoj;kus Eg.kts rq>k nkthus dkMhisVowu eyk isVowu fnys**

1. PW 2 has denied suggestion that since he had received

money from the accused, he was deposing falsely.

. PW 2 then was subjected to cross-examination at the

instance of defence in which he had admitted that accused has spent lot

for treatment of Meerabai as she was not conceiving and after he reached

the hospital, Laxman alongwith Fatangare after 10-15 hours and in

evening Laxman and Fatangare reached the hospital. He told the police

that at 04.00 am, Meerabai did not speak with him, and at 11.00 am, she

did. He did not lodge the report till Fatangare reached, as Meerabai did

not complain. He also admitted that Laxman was annoyed with the
9 criapeal1046.19.odt

accused because Meerabai was living with him. He also admitted that

when Meerabai was lying in the hospital, Laxman narrated her statement

to Fatangare. It was also admitted that while dousing the fire on the

Meerabai, the limbs of the accused were burnt. He also admitted that till

the death of Meerabai, she did not make any complaint against the

accused, and after the arrest of the accused, he came to know that

Laxman and Fatangare had made some writing work against him.

. PW 2, in cross-examination at the instance of the defence,

has further admitted that on 14-01-2016, he was with Meerabai for the

whole day. Tahasildar had been to the hospital to record her statement,

during which she took her thumb impression on printed paper. In the

presence of PW 2, Meerabai did not make any complaint against the

accused before Fatangare and Tahasildar.

1. Testimony of this witness shows that he was the brother of

the deceased, and initially the victim was taken to the hospital at Shendi

and thereafter to Nashik. In the examination-in-chief, it further shows

that Laxman came to the hospital along with Officer Fatangare of

Rajapur Police Station, and both enquired of Meerabai regarding the

incident narrated. He also admitted that the victim did not disclose who

lit her with the matchstick. Since this witness was declared hostile, it is
10 criapeal1046.19.odt

necessary to discuss the law laid down by the Hon'ble Apex Court in the

case of Neeraj Dutta Vs. State (Govt. of NCT of Delhi), (2023) 4 SCC

731, has held in paragraph Nos. 85, 86 and 87 which is reads thus:-

"85. In this regard, out attention was drawn to Sat Paul V.
Delhi Admn. ("Sat Paul") which is a case arising under the
1947 Act wherein this Court speaking through Sarkaria, J. has
made pertinent observations regarding the credibility of a
hostile witness. It was observed in para 30 of the judgment that
the terms "hostile witness", "adverse witness", "unfavourable
witness", "unwilling witness" are all terms of English law. At
Common law, if a witness exhibited manifest antipathy, by his
demeanour, answers and attitude, to the cause of the party
calling him, the party was not, as a general rule, permitted to
contradict him with his previous inconsistent statements, nor
allowed to impeach his credit by general evidence of bad
character. It was observed in para 33 that the rigidity of the
rule prohibiting a party to discredit or contradict its own
witness was to an extent relaxed by evolving the terms "hostile
witness" and "unfavourable witness" and by attempting to
draw a distinction between the two categories. A "hostile
witness" is described as one who is not desirous of telling the
truth at the instance of the party calling him, and an
"unfavourable witness" is one called by a party to prove a
particular fact in issue or relevant to the issue who fails to
prove such fact, or proves an opposite fact.

1. In the context of Sections 142 and 154 of the Evidence Act, this Court observed in paras 38 and 52 as under : (Sat Paul case, SCC pp. 741-42 & 745-46).

"38. To steer clear of the controversy over the meaning
of the terms "hostile" witness, "adverse" witness,
"unfavourable" witness which had given rise to
considerable difficulty and conflict of opinion in England,
the authors of the Evidence Act, 1872 seem to have
advisedly avoided the use of any of those terms so that, in
India, the grant of permission to cross-examine his own
witness by a party is not conditional on the witness being
11 criapeal1046.19.odt

declared "adverse" or "hostile". Whether it be the grant
of permission under Section 142 to put leading questions,
or the leave under Section 154 to ask questions which
might be put in cross-examination by the adverse party,
the Evidence Act leaves the matter entirely to the
discretion of the court (see the observations of Sir
lawrence Jenkins in Baikuntha Nath Chattoraj v.
Prasannamoyi Debya). The discretion conferred by Section 154 on the curt is unqualified and untrammelled,
and is apart from any question of "hostility". It is to be
liberally exercised whenever the court from the witnesses'
demeanour, temper, attitude, bearing, or the tenor and
tendency of his answers, or from a perusal of his previous
inconsistent statement, or otherwise, thinks that the grant
of such permission is expedient to extract the truth and to
do justice. The grant of such permission does not amount
to an adjudication by the court as to the veracity of the
witness. Therefore, in the order granting such permission
it is preferable to avoid the use of such expressions, such
as "declared hostile", "declared unfavourable" the
significance of which is still not free from the historical
cobwebs which, in their wake bring a misleading legacy
of confusion, and conflict that had so long vexed the
English courts.

1. From the above conspectus, it emerges clear that even
   in a criminal prosecution when a witness is cross-
   examined and contradicted with the leave of the court, by
   the party calling him, his evidence cannot, as a matter lf
   law, be treated as washed off the record altogether. It is
   for the Judge of fact to consider in each case whether as
   a result of such cross-examination and contradiction, the
   witness stands thoroughly discredited or can still be
   believed in regard to a part of his testimony. If the Judge
   finds that in the process, the credit of the witness has not
   been completely shaken, he may, after reading and
   considering the evidence of the witness, as a whole, with
   due caution and care, accept, in the light of the other
   evidence on the record, that part of his testimony which
   he finds to be creditworthy and act upon it. If in a given
   case, the whole of the testimony of the witness is
   12 criapeal1046.19.odt

        impugned, and in the process, the witness stands squarely
        and totally discredit, the Judge should, as a matter of
        prudence, discard his evidence in toto."
   

2. Therefore, this Court cautioned that even if a witness is
   treated as "hostile" and is cross-examined, his evidence cannot
   be written off altogether but must be considered with due care
   and circumspection and that part of the testimony which is
   creditworthy must be considered and acted upon. It is for the
   Judge as a matter of prudence to consider the extent of
   evidence which is creditworthy for the purpose of proof of the
   case. In other words, the fact that a witness has been declared
   "hostile" does not result in an automatic rejection of his
   evidence. Even, the evidence of a "hostile witness" if it finds
   corroboration from the facts of the case may be taken into
   account while judging the guilt of the accused. Thus, there is no
   legal bar to raise a conviction upon a "hostile witness"

testimony if corroborated by other reliable evidence."

. The Hon'ble Apex Court in the aforesaid case has

categorically stated that just because a witness is declared hostile, his

testimony cannot be ignored. It will have to be seen whether this witness

is interested and whether the other part of the testimony is duly

corroborated and inspires confidence.

1. In that regard, if the testimony is perused, it would reveal

that it is not disputed that initially, the victim was taken to Shendi Rural

Hospital. It is very surprising to note that no document is produced on

record by the prosecution regarding treatment or any advice given by the

Medical Officers attached to the Rural Hospital at Shendi for medical
13 criapeal1046.19.odt

treatment. Thus, the best evidence and the documents that could have

been available at the earliest point in time have not been brought on

record.

1. If this aspect is considered in the light of the testimony of

PW 1, more particularly from cross-examination, she admitted that the

accused had taken the deceased in his car to Kelungan and met his

mother-in-law, Heerabai. This is also required to be appreciated. What

happened at the said village remains a mystery, since the mother of the

deceased had died and therefore could not be examined. Since the

prosecution has not taken any steps to bring on record what happened at

the aforesaid village, the prosecution's link in the case to connect the

accused to the crime is also missing.

1. At this stage, it is necessary to mention here that arrest

panchanama below Exh.23 that right hand palm of accused had sustained

burn injuries. It's surprising that the prosecution hasn't produced a single

document detailing the type and age of the injuries sustained by the

accused.

1. Testimony of PW 3-Ramesh deals with proving the spot

panchanama of the house where the deceased and the accused were
14 criapeal1046.19.odt

residing. PW 3 has deposed that when they visited the spot of the incident

along with others, they noticed that utensils, the stove, and clothes were

scattered, and the floor was wet. The bedsheet and quilt were burnt but

soaked with water. From the spot panchanama below (Exh. 22), it further

reveals that two ignited/burnt matchstick, matchbox with 13 sticks,

sweater, gown, and stove with kerosene in a small quantity, were seized.

The defence extracted no truthful information from this witness's

testimony.

1. PW 4 is Gangaram, who was working as an Assistant Sub-

Inspector at the Police Station, stated that he went to Civil Hospital on

14-01-2016, where he recorded the statement of Meerabai and met the

Police Officer. He then gave a letter for recording the statement below,

Exh. P-25. He then recorded a statement in the presence of the Medical

Officer and her relatives. PW 1, who read over the statement and

admitted its contents as correct, and put her thumb impression. PW 1 then

attested to the statement. So, the Doctor's signature was taken, and PW 4

also put his signature. He deposed that the doctor had told him that

Meerabai was in a condition to make a statement. He was also convinced

about the same. He then brought her statement to the police station and

had the crime registered.

15 criapeal1046.19.odt

1. In cross-examination P W 4 admitted that on 14-01-2016, he

was not on duty. The Civil Hospital in Nashik falls within the jurisdiction

of Bhadrakali Police Station. He stated that upon receiving the

information, an entry must be made in the station diary. If the police

officer goes outside for investigation, the same must also be noted in the

diary. He admitted that when he had met the victim in Nashik Hospital,

PW 1-Sheela, PW 5- Laxman were present along with her. He denied

knowing that Laxman was a retired police officer. He admitted that the

face and hands of the victim were in a burnt condition, and it is necessary

to take a certificate from the doctor to verify that the patient is completely

conscious to take a statement. Similarly, he took the certificate after

completion of the statement. He admitted that Meerabai was uneducated

and was not in a position to say the English month, date, and time, and

was also not familiar with the word 'Burn Ward'. As well as the

percentage of burning. He stated that in the statement dated 14-01-2016

percentage of burning was not stated by her. He admitted that Laxman

was present during the recording of Meerabai's statement. He further

admitted that the Magistrate did not visit the hospital while recording the

statement.

1. If testimony of the aforesaid witness is perused, it would 16 criapeal1046.19.odt

reveal that when statement dated 14-01-2016 i.e. dying declaration

Exh.P-48 was recorded not only PW 5-Laxman was present but also PW

1-Sheela. It's quite surprising to note why the statement was recorded in

the presence of close relatives of the deceased. Further, if Exh.P-48 is

perused, it would reveal that the endorsement given is that the patient was

conscious to give a statement, with the date mentioned as 14-01-2016 and

the timing as 08.10 pm. Surprisingly, Exh. P-48 shows that the recording

of the statement began at 19.00 and ended at 19.45. The Medical Officer's

remark shows it was given at 08:10 pm. It is evident that, before

recording a statement, the question of whether the doctor's opinion was

taken on whether the patient was in a fit condition to give a statement

remains a mystery, which in turn creates doubt. Further, it is not disputed

that the persons who gave the Medical Officer endorsement are also not

examined. PW 4's testimony nowhere indicates which Doctor made this

endorsement. Even endorsement is neither proved nor exhibited.

1. Thus, testimony shows that Laxamn was also present. The

presence of Laxman will have to be tested from the admission made by

PW 2 in his cross-examination, that Laxman was annoyed with the

accused because Meerabai was living with him, and that in the evening,

Laxman and Fatangare reached the hospital. PW 1, in cross-examination,
17 criapeal1046.19.odt

stated that Laxman is their distant father-in-law, that he retired as a Police

Sub-Inspector, and his advice is taken in their family.

1. In this background, if the testimony of PW 5 Laxman is

seen, he has stated that he had been to the house of the accused on 13-01-

2016, on which date he noticed a quarrel took place between the accused

and Meerabai and when questioned, Meerabai told him that the accused

had been drinking since 06.00 am and again brought a bottle of liquor.

PW 5 then tried to convince both, but they did not listen. Thereafter, he

went to Akole. At 10.00 pm. Navnath PW 2 informed that Meerabai had

been burnt, and he came to know about the incident, as well as the fact

that the accused had taken her to the hospital at Shendi. Thereafter,

Meerabai was referred to the Civil Hospital at Nashik. He submitted that

on 14-01-2016 at 04.00 pm, he reached the hospital at Nashik.

1. At this stage, it is necessary to mention here that this witness

is residing at Kelungan, Dist. Ahmednagar, and he reached the hospital in

Nashik the next day at 04.00 pm. PW 5 stated that he enquired from

Meerabai, who told him that the accused had instigated her to pour

kerosene on her person, and when she did, the accused threw a burning

matchstick on her. She further told that the accused was trying to

extinguish the fire, and both his hands were burnt, and he was admitted to
18 criapeal1046.19.odt

the adjoining ward. He then went there but did not find anyone by the

accused's name.

1. In the cross-examination, omissions regarding his visit to the

police station, his visit to the house of the accused, the accused and the

victim quarrelling, the deceased narrating about bringing a bottle, the act

of PW 5, convincing both the accused and the victim, and the victim and

the accused not listening to him, were put to him. Further omissions were

brought to the witness's attention. The same was not put to Investigating

Officer, and therefore, it cannot be taken benefit by the defence. He

further admitted that there are 17 members in his family living in Wada,

and on 14-01-2016 at 09.00 am, he went to the police station in Rajur. He

denied the other suggestion that Meerabai had told him of receiving burn

injuries accidentally, and he took Police Fatangare for further

investigation.

1. Though this witness has stated that on 14-01-2016, when he

went to the hospital, the deceased had narrated to him the incident, which

is labelled by the prosecution as a dying declaration, the fact remains that

the testimony of this witness fails to inspire confidence. Fatangare/PW 4,

in his testimony, has stated that when the statement of deceased Meerabai

was recorded, not only PW 1 but also PW 5 was present. But surprisingly,
19 criapeal1046.19.odt

this witness has not said anything about the presence of PW 1 and PW 4.

The witness was the Police Officer, and despite this, he did not take any

immediate steps to lodge the first information report when he came to

know about the fact on 14-01-2016 at 04.00 pm about the accused setting

the victim on fire, which also goes to the root of the matter.

1. The first information report in this case was lodged on 15-

01-2016. Further, PW 5 has stated that he received information regarding

the incident on 13-01-2016 at about 05.00 pm from PW 2. He visited the

hospital on 14-01-2016 at 04.00 pm. Further, PW 2 stated that

Laxman/PW 5 was annoyed with the accused because Meerabai was

living with him, which casts doubt on this witness's testimony. The

conduct of this witness is not that of a man of ordinary prudence.

1. So far as the testimony of PW 7/Executive Magistrate who

recorded the dying declaration below Exh.P-40 is concerned, he has

stated that on 14-01-2016, he received a telephonic call from the police

station booth in Nashik Civil Hospital for recording the dying declaration

of Meerabai and thereafter, he reached the hospital by informing his

superior. He then met the police, who took him to Doctor/PW 8. He then,

along with the doctor and the police, went into the ward where Meerabai

was admitted. The doctor examined Meerabai and stated that she could
20 criapeal1046.19.odt

give a statement and was mentally fit to do so. A remark was then given.

He asked the doctor,Police and relatives to go outside the ward,

administered her oath, conducted a preliminary enquiry, and recorded her

statement as per her say. The statement recorded was read over to

Meerabai, on which she put her thumb impression, and PW 7 put his

signature as a witness. The said statement was marked as Exh. below. P-

1. Thereafter, he obtained the doctor's signature on the complete

recording of the statement and the doctor's remarks.

1. In this background, if Exh.P-40 is perused, it would reveal

that in the opening line itself, it is stated that as per the request made by

Police Station Rajur, at 06.30 on 14-01-2016, he presented himself in the

Nashik District Hospital and met the Medical Officer and obtained his

remark regarding questioning whether the patient was conscious and able

to speak. Thereafter, the Doctor's statement was taken, which showed the

patient was able to give a statement; the signature was affixed, and the

time was recorded as 06.46. It is mentioned in Exh.P-40. Thereafter, the

Doctor, the police, and the patient's relatives were asked to go outside,

and it was ensured that no one was present. The statement was recorded

in which the victim said that, for the last 2-3 days, the accused had

consumed liquor, and a quarrel had taken place between them. During
21 criapeal1046.19.odt

that quarrel, the husband asked her to pour petrol, and the victim did so.

Husband then lit the matchstick and threw it. At that time, she was alone

with her husband. The statement further shows that she stated her

husband extinguished the fire and took her to the hospital. She stated that

she has no complaint against him.

1. At this stage, it is necessary to mention here that this witness was

subjected to cross-examination, in which he admitted that the second remark

was taken from the Doctor in the doctor's chamber, which was on the first

floor. In contrast, the burn ward was on the second floor. He admitted that

before approaching the officers, he had not received any letter from the police

station, and that communication had been exchanged at the civil hospital. At

that time, no personnel from Rajur Police Station were present. He admitted

that at 06.30 he received a message and, within 10 minutes, reached the police

station. He admitted that the lips of the victim were burnt, as well as both

palms. He admitted that the Medical Officer needed to assess, after the victim

completed her statement, whether she was in a conscious state. He further

admitted that when he reached the hospital, relatives were with Meerabai. The

other suggestion he denied.

1. If the statement of this witness is perused, it would reveal

that Exh.P-40 shows that he visited the hospital at the request of the

police. Still, in his examination-in-chief, he stated that he received a call
22 criapeal1046.19.odt

from the police booth attached to Nashik Civil Hospital. Though this

witness has stated that Exh. 40 shows that the Doctor, police, and the

patient's relatives were asked to go outside. PW 1, in her testimony, has

categorically stated that PW 7 and PW 4 had recorded the statement of

Meerabai at the same time. As already discussed, PW 4 stated that when

the statement was recorded, PW-1 was present, and even PW 1's

signature was taken on the statement. This shows that prosecution is

coming with a different stories through different witnesses. Thus

loopholes in the prosecution's story goes to the root of the matter and,

consequently, shows that the case is full of doubt. It is further pertinent to

mention here that the endorsement of the Medical Officer is also not

proved by the prosecution. This witness's testimony fails to inspire

confidence.

1. PW 8 is the Medical Officer, who, in his cross-examination,

has stated that he had examined Meerabai, who was speaking properly

and made an endorsement accordingly on the form of statement which

bears his signature, i.e. Exh.P-40. He went to the casualty ward on duty

and, on completion of the statement, returned to the burn ward and made

an endorsement regarding his completion. He then put his signature. He

stated that Meerabai was in a condition to make a statement; therefore, he
23 criapeal1046.19.odt

made an endorsement accordingly, identified his signature, and when the

police recorded her statement, he went outside the ward. He was on

casualty duty and therefore went to the casualty ward. The statement was

shown to him, and he identified his endorsement. But it was not

exhibited. It needs to mention here that endorsement was not exhibited.

In the absence of it, it is very difficult to consider which endorsement was

shown and proved by the prosecution.

1. In the cross-examination, this witness has admitted that the

victim has sustained burn injuries to the extent of 40% to 50%, and both

the palms and the fingers were burnt. Also, she had deep injuries on both

lips. He also admitted that it is necessary for the doctor to remain present

during the recording of the statement. Still, he was not present with the

patient when both statements were recorded. He stated that it might have

been the case that the Executive Magistrate and the Police were present

with the patient at the same time. Testimony of this witness shows that,

though it was necessary to remain present with the patient, but when the

statement was recorded; he was not present. Further, there is also doubt

as to whether the patient/deceased was in a position to speak properly, or

not, since according to the testimony of this witness, she was having deep

burn injuries on both lips. Though the court is not expert in dealing with
24 criapeal1046.19.odt

the said aspect, but the fact remain that if deep burn injuries sustained on

the lips and narrating the incident which would have been very difficult

task. This also creates doubt in the story of the prosecution. Absence of

the doctor at the time of recording of the statement also goes in favour of

the accused, in the peculiar facts and circumstances of the case.

1. Coming to the testimony of Investigating Officer PW 6-

Dilip, who has deposed that he had recorded the statement of persons

living near the place of the incident, and their names were Navnath,

Pandurang, Mangal, Rakhmabai, Sheelabai, Laxman, and others. The fact

remains that the prosecution did not examine the independent witnesses.

The prosecution's failure to examine the independent witness, in the

peculiar facts and circumstances of the case, also creates doubt.

1. Coming to the seizure of clothes and the material, and their

forwarding to the laboratory. CA report is below Exh. P-17, which

provides a description of the articles and the results of the analysis.

Suffice it to say that the match stick was below Exh.1 and the match

sticks found in the match box were below Exh.2; were not found suitable

for examination. The liquid in the stove was found to be kerosene, and

the result of the detection of kerosene residues on Exh.3 & Exh. 4 were

found positive. Exh. 3 was a partly burnt sweater, and Exh. 4 was a partly
25 criapeal1046.19.odt

burnt gown. The aforesaid analysis also does not help the prosecution

prove the accused's guilt, as it is merely an opinion.

1. At this stage, it is necessary to state that Hon'ble Apex Court

in the case of Mohan Lal and others Vs State of Harayana decided on 21-

02-2007 criminal Appeal No. 236 of 2007 arising out of SLP

(Cri)/6344/2006, the copy of which is tendered by the learned counsel for

the appellant has laid down the principle regarding appreciation of dying

declaration which are as under:-

(i) There is neither rule of law nor of prudence that dying
declaration cannot be acted upon without corroboration. [See Munnu Raja & Anr. v. The State of Madhya Pradesh (1976) 2 SCR

764)]

(ii) If the Court is satisfied that the dying declaration is true and
voluntary it can base conviction on it, without corroboration. [See State of Uttar Pradesh v. Ram Sagar Yadav and Ors. (AIR 1985 SC

416) and Ramavati Devi v. State of Bihar (AIR 1983 SC 164)]

(iii) The Court has to scrutinize the dying declaration carefully and
must ensure that the declaration is not the result of tutoring,
prompting or imagination. The deceased had an opportunity to
observe and identify the assailants and was in a fit state to make
the declaration. [See K. Ramachandra Reddy and Anr. v. The
Public Prosecutor (AIR 1976 SC 1994)]

(iv) Where the dying declaration is suspicious, it should not be
26 criapeal1046.19.odt

acted upon without corroborative evidence. [See Rasheed Beg v.
State of Madhya Pradesh (1974 (4) SCC 264)]

(v) Where the deceased was unconscious and could never make
any dying declaration, the evidence with regard to it is to be
rejected. [See Kaka Singh v State of M.P. (AIR 1982 SC 1021)]

(vi) A dying declaration which suffers from infirmity cannot form
the basis of conviction. [See Ram Manorath and Ors. v. State of
U.P. (1981 (2) SCC 654)

(vii) Merely because a dying declaration does contain the details as
to the occurrence, it is not to be rejected. [See State of Maharashtra
v. Krishnamurthi Laxmipati Naidu (AIR 1981 SC 617)]

(viii) Equally, merely because it is a brief statement, it is not to be
discarded. On the contrary, the shortness of the statement itself
guarantees truth. [See Surajdeo Oza and Ors. v. State of Bihar
(AIR 1979 SC 1505).

(ix) Normally, the Court, in order to determine whether the
deceased was in a fit mental condition to make the dying
declaration, looks to the medical opinion. But where the eye-
witness said that the deceased was in a fit and conscious state to
make the dying declaration, the medical opinion cannot prevail.
[See Nanahau Ram and Anr. v. State of Madhya Pradesh (AIR
1988 SC 912)].

(x) Where the prosecution version differs from the version as given
in the dying declaration, the said declaration cannot be acted upon.

27 criapeal1046.19.odt

  [See [State of U.P. v. Madan Mohan and Ors.](https://indiankanoon.org/doc/307132/) (AIR 1989 SC 1519)].

(xi) Where there is more than one statement in the nature of a
dying declaration, the first in point of time must be preferred. Of
course, if the plurality of dying declarations could be held to be
trustworthy and reliable, it has to be accepted.

1. Thus, it is crystal clear that the aforesaid judgment shows

that for relying upon the dying declaration, it is required to be seen

whether the same is true and voluntary and whether suspicious. As

already stated, the manner in which the dying declaration is recorded

would suggest that suspicion and the possibility of tutoring or prompting

cannot be ruled out. Further, there is no corroborating evidence.

1. The learned APP has relied upon the law laid down by the

Hon'ble Apex Court in the case of Laxman Vs State of Maharashtra reported in (2002) 6 SCC 710 and has contended that dying declaration

can be oral or in writing and inadequate method of communication

whether by the words or by signs or otherwise will suffice, provided the

indication is positive and definite. She then contended that the oath is

also not necessary to be administered, and that there is no requirement

that a dying declaration be made to the Magistrate. Even the certification

by the doctor is essentially a rule of caution; therefore, the voluntarily

and truthful nature of the declaration would suffice.

28 criapeal1046.19.odt

1. The question is not whether a dying declaration can be relied

upon or not. The question is whether, in peculiar facts and circumstances,

a dying declaration should be relied upon as truthful or inspires

confidence. As already discussed, neither the dying declaration has been

proved nor has a corroborative piece of evidence been brought on record.

Further, the trial court has not dealt with the aforesaid aspect in a just and

proper manner. In that view of the matter, following order is passed.

ORDER

      a]    The appeal is allowed.

      b]    The judgment and order passed by the Additional Sessions Judge Sangamner, dated 31-08-22019, in Sessions Case No. 31 of
      2016, convicting the appellant for the commission of offences
      punishable under [Section 304](https://indiankanoon.org/doc/409589/) of the IPC, is set aside.

      c]    Consequently, the accused is acquitted of the commission of
      offences punishable under Section 304. He be released forthwith, if
      not required in any other proceeding.

d] Fine amount, if any deposited, be refunded to the appellant.

( RAJNISH R. VYAS, J. )

VishalK