Criminal Appeal No. 255 of 2001,Criminal Appeal No. 306 of 2004

7th December, 2007

Petitioner Counsel: Shri. S. V. SIRPURKAR
Respondent Counsel: Mrs. S. S. WANDILE

JUDGMENT

D. D. SINGH, J.:- Heard Shri. Sirpurkar, learned Counsel for the appellants, and Mrs. Wandile, learned Additional Public Prosecutor for the respondent.

2. The criminal appeals are directed against the common judgment and order dated 4-8-2001 passed by the 2nd Additional Sessions Judge, Akola in Sessions Trial No.113/1996 whereby appellant Pradip Mahadeo Gadekar was convicted for the offence punishable under Section 498-A of Indian Penal Code and sentenced to suffer rigorous imprisonment for two years and was also directed to pay fine of rupees five hundred and in default of payment of fine, to suffer rigorous imprisonment for six months. Appellant Pradip Mahadeo Gadekar was also convicted for the offence punishable under Section 302 of Indian Penal Code and sentenced to undergo imprisonment for life and was also directed to pay fine of rupees one thousand and in default of payment of fine, to suffer rigorous imprisonment for two years. The substantive sentences were directed to run concurrently. Appellant Pravin Mahadeo Gadekar was convicted for the offence punishable under Section 354 of Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and was also directed to pay fine of rupees five hundred and in default of payment of fine, to suffer rigorous imprisonment for three months.

3. The prosecution case, in nutshell, is as follows :

Deceased Sadhana was daughter of PW 5 Narmada and was married to appellant Pradip about 4-5 years prior to the date of incident, i.e. 6-11-1995. This was the second marriage of Pradip since his first wife had expired. After the marriage, deceased Sadhana was residing with her husband Pradip as well as appellant Pravin and Parwatabai. After the marriage, deceased Sadhana was subjected to cruelty by her husband and in laws and as a result thereof, she was constrained to leave her matrimonial home and went to her parent's home. A report was lodged by deceased Sadhana against her husband Pradip, brother-in-law Pravin and mother-in-law Parwatabai. On the basis thereof, all these persons were prosecuted. Pending prosecution, the parties, settled their dispute and deceased Sadhana started cohabiting with her husband Pradip.

4. It is the case of the prosecution that in the morning of 6-11-1995, deceased Sadhana suffered burn injuries and while extinguishing fire, her husband Pradip also suffered burn injuries. Both were rushed to District Hospital, Akola for treatment. One Shelke gave information to Police on telephone that deceased Sadhana had suffered burn injuries in the house and was taken to the Hospital. A note of the said information was taken in the station dairy and the Police went to the spot. After deceased Sadhana was admitted in the Hospital, arrangement was made for recording her dying declaration by PW 8 Pawar, Executive Magistrate. He recorded dying declaration of deceased Sadhana at 3.25 a.m. on 7-11-1995.

5. It is the case of the prosecution that some one from Balapur informed to PW 5 Narmada, mother of deceased Sadhana, that something had happened to her daughter and, therefore, she should see her. PW 5 Narmada went to the Hospital along with her son Nilkantha in the evening of 6-11-1995 and met deceased Sadhana in the Hospital. It is the case of the prosecution that on enquiry made by PW 5 Narmada, deceased Sadhana told her that few days prior to the date of incident, her brother-in-law Pravin had tried to molest her and she had complained about it to her mother-in-law. However, her mother-in-law did not pay any heed to her complaint and, therefore, she had informed her husband about the said incident. However, he also ignored the same. It is the case of the prosecution that appellant Pradip and mother-in-law of deceased Sadhana, on the day of incident, poured kerosene on her person and thereafter placed the portion of her saree on the cooking gas burner, which was on, with the result, clothes of deceased Sadhana caught fire.

6. It is the case of the prosecution that P.S.I Deshmukh directed A.S.I. Chakranarayan to proceed to the District Hospital and record statement of Sadhana. On 10-11-1995, Sadhana succumbed to her burn injuries and, therefore, information in this regard was given by the Hospital Authorities to the Police and on the basis thereof, offence punishable under Section 302 of Indian Penal Code was registered against the accused. During the course of investigation, which was already in progress, Police Authorities seized partly burnt carpet, a bed-sheet, two quilts, pieces of saree, lungi and pillow as well as some ornaments made of metal. Similarly, banayan of accused Pradip was seized on 9-11-1999. Accused Pravin and Parwatabai were arrested on 9-11-1999 whereas accused Pradip was arrested on 27-11-1995 since till that time, he was undergoing treatment at the District Hospital. The inquest panchanama was drawn and the dead body of Sadhana was forwarded to Dr. Prashant Waichal, Medical Officer for post-mortem examination. Dr. Prashant Waichal after conducting post-mortem examination opined that cause of death of Sadhana was septicemic shock due to extensive burn injuries - 96%.

7. Charge for the offence punishable under Sections 498-A and 302 read with Section 34 of Indian Penal Code was framed against all the accused persons. Accused Pravin, in addition, was also charged for the offence punishable under Section 354 of Indian Penal Code. The charge was explained to the accused persons. They denied the same and claimed to be tried. The defence of appellant Pradip was that only a week before the day of incident, he was posted at Nagpur (Public Works Department) and Sadhana wanted him to take her along with children to Nagpur, to which he refused. Sadhana, therefore, gave threat of doing something wrong to herself. On the day of incident, at the relevant time, according to Pradip, while he was taking bath, he heard shouts/cries and, therefore, came out of bath-room and tried to put off the fire. He took his wife to the Hospital at Akola. Ultimately, the trial Court convicted appellant Pradip for the offence punishable under Section 498-A and 302 of Indian Penal Code. Appellant Pravin and original accused Parwatabai were acquitted of the offences punishable under Sections 498-A and 302 read with Section 34 of Indian Penal Code. However, appellant Pravin was convicted for the offence punishable under Section 354 of Indian Penal Code. The State has preferred appeal against acquittal of appellant Pravin as well as original accused Parwatabai for the offences punishable under Section 498-A and 302 read with Section 34 of Indian Penal Code, and, therefore, in the present appeals, we have to consider whether evidence adduced by the prosecution established the offences for which the appellants are convicted, beyond all reasonable doubts.

8. Shri. Sirpurkar, learned Counsel for the appellants, contended that the case of the prosecution is primarily based on the dying declarations alleged to have been given by deceased Sadhana. It was submitted that it is alleged by the prosecution that PW 8 Pawar, Executive Magistrate recorded dying declaration of deceased Sadhana on 7-11-1995 at about 3 a.m.. It is also alleged by the prosecution that deceased Sadhana gave an oral dying declaration to her mother Narmada on 6-11-1995 when she met her in the Hospital. Similarly, deceased Sadhana, on 6-11-1995, also gave oral dying declaration to PW 1 Suryakanta. It was vehemently argued that all these dying declarations are not only inconsistent with each other, but there are inherent discrepancies in respect of circumstances alleged to have taken place prior to the incident in question and as alleged to have been narrated by deceased Sadhana to these persons. It was submitted that inconsistencies in respect of material particulars in these dying declarations render these dying declarations untrustworthy and unreliable.

9. Learned Counsel Shri. Sirpurkar submitted that so far as evidence of PW 1 Suryakanta is concerned, she has stated in her examination-in-chief that she went to the District Hospital to see Sadhana and met her in the Hospital. On enquiry, deceased Sadhana told her that her husband had gone to Nagpur since he was posted there. Sadhana further informed her that on the previous night, her brother-in-law Pravin had raped her. Deceased Sadhana had complied about it to her mother-in-law. However, she did not pay any heed to the same. PW 1 Suryakanta further deposed that deceased Sadhana told her that her husband Pradip came from Nagpur and she told him about the rape committed by her brother-in-law Pravin on her and immediately thereafter her husband poured kerosene on her person and placed portion of her saree on the cooking gas burner, which was burning, with the result she received burn injuries.

10. Learned Counsel Shri. Sirpurkar submitted that so far as evidence of PW 5 Narmada is concerned, in her examination-in-chief she has stated that on 6-11-1995 she met deceased Sadhana in the Hospital at about 7 p.m. and on enquiry, deceased Sadhana told her that her husband and brother-in-law poured four liters of kerosene on her person. This witness has also deposed in her examination-in-chief that her daughter Sadhana told her that her brother-in-law Pravin, in absence of her husband, tried to outrage her modesty and she complained about it to her mother-in-law, who ignored the same. This witness has further deposed in her examination-in-chief that her daughter Sadhana also told her that when her husband came, she complained to him about the incident, but he got annoyed and asked his brother to rape her forthwith. This witness has further deposed that her daughter also told her that her husband, brother-in-law and mother-in-law poured kerosene on her person and when she tried to run out of the house, her brother-in-law caught hold her and brought her inside the house and her husband thereafter kept portion of her saree on the gas, which was burning and she did not remember who extinguished the fire.

11. Learned Counsel Shri. Sirpurkar submitted that the story given by deceased Sadhana in her dying declaration (Exh.96), which was recorded by PW 8 Pawar, Executive Magistrate is completely different from the story given by her in her earlier oral dying declarations. It was contended that PW 8 Pawar, Executive Magistrate in his examination-in-chief has stated that deceased Sadhana told her that after her husband went to Nagpur, her brother-in-law Pravin attempted to rape her and she told about it to her mother-in-law and her husband, but they did not pay any attention to this aspect. This witness has further deposed that deceased Sadhana told her that after pouring kerosene on her person, portion of her saree was kept on the gas, which was burning. Deceased Sadhana also told him that her husband and brother-in-law admitted her in the Hospital. It was contended by the learned Counsel for the appellants that the story alleged to have been told by deceased Sadhana to PW 1 Suryakanta, her mother PW 5 Narmada and PW 8 Pawar, Executive Magistrate is totally inconsistent with each other and creates serious doubt about authenticity thereof and renders all these dying declarations completely unreliable and untrustworthy.

12. It was submitted by the learned Counsel for the appellants that deceased Sadhana alleged to have told PW 1 Suryakanta that on the previous night of the incident, appellant Pravin raped her. However, as per evidence of PW 5 Narmada, deceased Sadhana told her that her brother-in-law tried to outrage her modesty and when she complained about it to her husband Pradip, he asked his brother to commit rape on her. It was submitted that evidence of PW 1 Suryakanta as well as PW 5 Narmada apart from being inconsistent in respect of material particulars of the prosecution case is completely unreliable and wholly irrational. It was contended that deceased Sadhana was mother of two children and was, therefore, totally aware about the difference in molestation and rape. However, while narrating story to PW 1 Suryakanta, deceased Sadhana told this witness that the brother-in-law Pravin raped her on the previous night of the incident whereas as per evidence of PW 5 Narmada, deceased Sadhana told her that on the previous night of the incident, Pravin tried to outrage her modesty. It was argued that this inconsistency is a material inconsistency, which destroys authenticity of the whole prosecution case. Similarly, it is unbelievable that husband of deceased Sadhana would ask his brother to commit rape on his own wife. It was submitted that dying declaration, which was recorded by PW 8 Pawar, Executive Magistrate, gives another version, which is not consistent with the earlier oral dying declarations. It was contended that all the three dying declarations (oral as well as written) are untrustworthy and, therefore, liable to be discarded.

13. Learned Counsel Shri. Sirpurkar further contended that in the instant case, PW 10 Wasudeo, A.S.I. has also recorded statement of deceased Sadhana on 8-11-1995. It was submitted that as per evidence of this witness, deceased Sadhana told him that after her husband left for Nagpur where he was posted, her brother-in-law Pravin on 2-11-1995 tried to outrange her modesty and on 5-11-1995 when her husband came back, she complained to him about the conduct of Pravin. However, her husband ignored the said complaint. It was contended that this witness has further deposed that deceased Sadhana told him that on 6-11-1995 her mother-in-law Parwatabai and brother-in-law Pravin caught hold of her and her husband poured kerosene on her person and set her on fire by putting her saree on the gas burner, which was on. She had also told him that her husband, brother and mother-in-law used to ill-treat her and in the past, offences in this regard were registered against them. However, the dispute was compromised. The learned Counsel submitted that though after death of Sadhana, the earlier statement of Sadhana recorded by PW 10 Wasudeo can be used as a dying declaration, however, the story narrated by deceased Sadhana to this witness is again different from the one narrated to PW 1 Suryakanta, PW 5 Narmada and PW 8 Pawar, Executive Magistrate. It was, therefore, contended that all these so called dying declarations being inconsistent with each other, are liable to be discarded and conviction awarded by the trial Court cannot be sustained-in-law.

14. Shri. Sirpurkar, learned Counsel for the appellants, further contended that it is the case of the prosecution itself that appellant Pradip could not be arrested before 27-11-1995 since he was admitted in the Hospital for treatment of the burn injuries sustained by him and was discharged from the Hospital on 27-11-1995. It was submitted that in the instant case, the prosecution has failed to explain as to how appellant Pradip sustained such serious burn injuries, which required hospitalisation for number of days and suppressed genesis of the incident and, therefore, adverse inference against the prosecution needs to be drawn and benefit in this regard needs to be given to the appellants.

15. The learned Counsel for the appellant also argued that PW 6 Dr. Prashant Waichal though opined that death of Sadhana was due to septicaemic shock due to extensive burns to the extent of 96%, however, that by itself does not bring home the guilt of the appellant beyond all reasonable doubts. It was contended that prosecution evidence on record does not prove the charges levelled against the appellants, with the result finding of conviction recorded by the trial Court against the appellants is unsustainable-in-law.

16. Mrs. Wandile, learned Additional Public Prosecutor for the respondent, on the other hand, supported the finding of conviction recorded by the trial Court. It was contended that in the instant case, deceased Sadhana has given oral dying Declaration to PW 1 Suryakanta (Who is an independent witness)and PW 5 Narmada (mother of deceased Sadhana). Similarly, PW 8 Pawar, Executive Magistrate recorded dying declaration of deceased Sadhana after obtaining certificate from Dr. Kalne that deceased Sadhana, at the relevant time, was in a fit mental condition to give her statement. It was further contended that PW 10 Wasudeo (A.S.I.) also recorded statement of deceased Sadhana on 8-11-1995, which was treated to be a dying declaration of Sadhana. It was submitted that though there is some inconsistency in respect of story told by deceased Sadhana to different witnesses, however, the same is of a minor nature and does not destroy the authenticity of the version given by deceased Sadhana in respect of her cause of death.

17. Mrs. Wandile, learned Additional Public Prosecutor further submitted that incident in question had taken place in the morning of 6-11-1995 in the house of deceased Sadhana where she was residing with her husband, brother-in-law and mother-in-law. Sadhana was admitted to the District Hospital immediately after the incident by her husband and her brother-in-law. PW 1 Suryakanta and PW 5 Narmada met deceased Sadhana in the evening of 6-11-1995 in the Hospital and as per evidence of these witnesses, Sadhana told them her brother-in-law tried to outrage her modesty and committed rape on her on the previous night of the incident and when she complained about conduct of her brother-in-law to her mother-in-law, she ignored the same. Her husband also came from Nagpur and was present in the house at the time of occurrence, to whom deceased Sadhana also complained about behaviour and act committed by her brother-in-law. It was submitted that the evidence of these two witnesses shows that appellant Pradip poured kerosene on the person of deceased Sadhana and set her on fire.

18. The learned Additional Public Prosecutor further contended that evidence of PW 1 Suryakanta and PW 5 Narmada is consistent with the evidence of PW 8 Pawar, Executive Magistrate who has recorded dying declaration of deceased Sadhana as well as PW 10 Wasudeo, A.S.I., who has recorded statement of deceased Sadhana on 8-11-1995. It was submitted that though there are four dying declarations available on record, however, they being consistent in respect of material particulars of the prosecution case and corroborated by the medical evidence, conviction awarded by the trial Court to the appellants is sustainable-in-law.

19. We have given anxious thought to the various contentions canvassed by the learned Counsel for the parties and carefully scrutinized the prosecution evidence on record. It is no doubt true that if the dying declaration (oral or written recorded by the Executive Magistrate or Police Officer) is truthful, reliable and cogent and if it inspires confidence of the Court, conviction can be based on the sole testimony of such dying declaration. However, rule of prudence is to seek corroboration. In the instant case, though prosecution has examined many witnesses, however, material witnesses are PW 1 Suryakanta, PW 5 Narmada, PW 8 Pawar, Executive Magistrate, PW 10 Wasudeo, A.S.I. and PW 6 Dr. Prashant Waichal and, therefore, we have carefully scrutinized the evidence of these witnesses including that of Investigation Officer PW 11 Satish Deshmukh and also considered the other circumstances on record by the prosecution. On scrutiny of the prosecution evidence coupled with the defence put forth by the appellants in their statements recorded by the trial Court under Section 313 of Code of Criminal Procedure as well as documents admitted by the defence, the following facts more or less are not in dispute :

Deceased Sadhana was wife of appellant Pradip, Appellant Pravin was brother-in-law and co-accused Parwatabai was mother-in-law of deceased Sadhana. Deceased Sadhana was second wife of appellant Pradip and at the relevant item, was residing with her husband Pradip, brother-in-law Pravin and mother-in-law Parwatabai in the house, which was located at Balapur. At the instance of deceased Sadhana, the appellants and co-accused Parwatabai were prosecuted for the offence punishable under Section 498-A of Indian Penal Code in the year 1993. However, there was amicable settlement of dispute between the parties and thereafter deceased Sadhana once again started cohabiting with her husband Pradip. Deceased Sadhana had two children from the marriage. Appellant Pradip was posted at Nagpur about a week prior to the date of occurrence and had come to Balapur on 5-11-1995. Appellant Pradip was at Balapur on 6-11-1995. In the morning of 6-11-1995 at about 8-8.30 a.m. deceased Sadhana sustained burn injuries in the house and, therefore, was admitted to the District Hospital. Appellant Pradip also sustained burn injuries and was also admitted to the District Hospital. One Shyam Shelke gave information to the Police immediately after the occurrence. Deceased Sadhana suffered 95% burn injuries and succumbed to those injuries on 10-11-1995. Appellant Pradip, however, survived the injuries. The spot inspection report prepared on 6-11-1995 shows that there was smell of kerosene in the house. Water was sprinkled in the house all over. One plastic can smelling of kerosene was lying on the spot. Carpet, quilt, lungi, bed-sheet and pillow were partly burnt. Similarly, partly burnt pieces of saree and broken marriage thread were also lying on the spot. All these articles were seized under the seizure panchanama.

20. The facts and circumstances referred to hereinabove, which are not in dispute, show that on the day of incident, i.e. 6-11-1995, at the relevant time, appellant Pradip, appellant Pravin and co-accused Parwatabai along with deceased Sadhana were present in the house. It is also not in dispute that on 6-11-1995 at about 8-8.30 a.m. deceased Sadhana suffered severe burn injuries in the house itself and was immediately admitted to the Hospital where she breathed her last on 10-11-1995. Now the crucial question is whether prosecution succeeded in proving the author of the said burn injuries sustained by deceased Sadhana ? In the instant case, as we have already observed hereinabove, the material evidence is in the nature of dying declaration only and there are as many as four dying declarations available on record, out of which two are oral dying declarations given by deceased Sadhana to PW 1 Suryakanta and PW 5 Narmada and remaining two are recorded by PW 8 Pawar, Executive Magistrate and PW 10 Wasudeo respectively. We have, therefore, carefully scrutinized the evidence of these witnesses in order to find out authenticity and truthfulness of these dying declarations of deceased Sadhana.

21. The evidence of PW 1 Suryakanta shows that when she met deceased Sadhana in the District Hospital, Akola on 6-11-1995, she enquired with her how she received burn injuries. Deceased Sadhana told her how she received burn injuries. Deceased Sadhana told her that her husband had gone to Nagpur on account of his posting and in the night previous to the date of incident, her brother-in-law Pravin raped her and therefore, she complained about it to her mother-in-law, but she did not pay any heed. The evidence of this witness shows that on 6-11-1995 deceased Sadhana disclosed to her husband Pradip that Pravin had committed rape on her. The evidence of this witness further shows that as soon as deceased Sadhana complained to her husband Pradip against her brother-in-law, her husband Pradip poured kerosene on her person and thereafter kept portion of her saree on the cooking gas burner, which was on, which the result she suffered burn injuries. The evidence of PW 1 Suryakanta clearly shows that deceased Sadhana in no uncertain terms told this witness that her brother-in-law Pravin raped her on 5-11-1995 and though she complained to her mother-in-law and husband Pradip in this regard, but they did not do anything and on the contrary, her husband alone poured kerosene on her person and set her on fire. There is no mention about any kind of ill-treatment meted out to her by any of the accused just prior to the date of occurrence and the cause of occurrence was the complaint made by deceased Sadhana to her husband Pradip about the rape committed by Pravin on the previous night.

22. As against the above version, evidence of PW 5 Narmada shows that when she met deceased Sadhana in the Hospital on 6-11-1995, she gave altogether difference version. According to evidence of PW 5 Narmada, deceased Sadhana told her that her brother-in-law tried to outrage her modesty and when she complained about it to her mother-in-law, she ignored the same and on arrival of husband from Nagpur when she complained to him, he got annoyed and asked his brother to commit rape on her. The evidence of PW 5 Narmada further shows that deceased Sadhana told her that her husband Pradip, brother-in-law and mother-in-law poured kerosene on her person and when she ran out of the house, her brother-in-law caught hold of her and brought her back in the house and thereafter her husband kept her saree end on the gas burner, which was on, with the result she suffered burn injuries. Deceased Sadhana was not aware who extinguished the fire.

23. The above referred two dying declarations are completely inconsistent with each other and the story told by deceased Sadhana particularly to her mother, apart from being inconsistent with the story told by deceased Sadhana to PW 1 Suryakanta is wholly irrational. It is inconceivable that appellant Pradip would ask his brother to commit rape on his own wife. Similarly, the evidence of PW 1 Suryakanta shows that appellant Pradip alone poured kerosene on the persons of deceased Sadhana and set her on fire. The inconsistency in these two oral dying declarations is a material inconsistency and creates serious doubt about authenticity of the testimonies of these two witnesses apart from the fact that story alleged to have been told by deceased Sadhana to her mother PW 5 Narmada is wholly irrational. Considering these major discrepancies in respect of the material particulars in these two oral dying declarations, we are of the view that evidence of PW 1 Suryakanta as well as PW 5 Narmada does not inspire confidence and, therefore, it is difficult to place reliance on the oral dying declarations alleged to have been made by deceased Sadhana to these witnesses.

24. There is another reason why the oral dying declarations of deceased Sadhana cannot be believed. The story told by deceased Sadhana about the conduct of Pravin to PW 1 Suryakanta as well as PW 5 Narmada is inherently inconsistent with material particulars, which renders the oral dying declarations untrustworthy. Deceased Sadhana was mother of two children and was completely aware of difference between the act of rape and act of attempting to outrage the modesty. The story alleged to have been told by deceased Sadhana to PW 1 Suryakanta that she was raped by her brother-in-law on the previous night of the incident cannot be believed since in the next breath she had told her mother that Pravin only attempted to outrage her modesty. In such situation, one thing is sure that either deceased Sadhana did not tell the truth to these witnesses or these witnesses were introducting falsehood in their respective testimonies. In any case, considering the inherent inconsistencies in respect of story alleged to have been told by deceased Sadhana to these two witnesses, the evidence of PW 1 Suryakanta and PW 5 Narmada creates serious doubt about truthfulness of their testimonies and, therefore, their evidence needs to be discarded and oral declaration alleged to have been made to them by deceased Sadhana, for similar reason, cannot be believed.

25. So far as Exh.96, i.e. dying declaration of deceased Sadhana recorded by PW 8 Pawar, Executive Magistrate is concerned, recitals therein demonstrate that Pravin prior to the incident attempted to commit rape on deceased Sadhana and when she narrated the said incident to her husband, he did not give any importance to this aspect. Similarly, her mother-in-law also ignored her complaint against her brother-in-law. In Exh.96, deceased Sadhana has only stated that she was set on fire after pouring kerosene on her person and, therefore, she sustained burn injuries. She has further stated in the said dying declaration that her husband admitted her in the Hospital and her brother-in-law was also present at the time of admission.

26. So far as evidence of PW 10 Wasudeo is concerned, an altogether different story about the conduct of Pravin and occurrence is forthcoming. According to this witness, deceased Sadhana told him that her brother-in-law tried to outrage her modesty on 2-11-1995. On 5-11-1995 husband of deceased Sadhana came back and she complained to him about behaviour of her brother-in-law. However, he did not pay any heed to it. The evidence of this witness further discloses that deceased Sadhana told him that in the morning of 6-11-1995, her mother-in-law and brother-in-law caught hold of her and thereafter her husband poured kerosene on her person and put portion of her saree on the gas burner, which was on, with the result, her clothes caught fire.

27. Before we consider the evidentiary value of both the above dying declarations, it is not known as to why there was delay of almost eighteen hours in recording dying declaration (Exh.96) by PW 8 Pawar, Executive Magistrate when the Police was informed about the incident immediately after its occurrence. Similarly, when the dying declaration of deceased Sadhana was already recorded by PW 8 Pawar, Executive Magistrate on 7-11-1995 at about 2.50 a.m., what was the necessity for the prosecution to again record the statement of deceased Sadhana on 8-11-1995. The statement recorded by PW 10 Wasudeo (Exh.101) is a very long statement and as per the evidence of this witness, recitals in the said statement are recorded by him as per version of deceased Sadhana. However, the said statement of deceased Sadhana was recorded by PW 10 Wasudeo without obtaining fitness certificate from the Doctor. It is difficult to ignore that deceased Sadhana sustained 96% burn injuries on 6-11-1995 and succumbed to the burn injuries on 10-11-1995 in the Hospital, in such situation, it is difficult to place reliance on the statement (Exh.101) recorded by PW 10 Wasudeo just two days prior to her death without obtaining fitness certificate from the Doctor. It is no doubt true that in a given case, for some reason, if it is not possible to obtain certificate of Doctor in respect of mental health of the patient before recording dying declaration and if the dying declaration is otherwise cogent, trustworthy and reliable, same cannot be discarded merely because the prosecution failed to obtain fitness certificate from the Doctor. However, in the instant case, deceased Sadhana was in the Hospital itself and since it was a case of 96% burns and there was a time gap of about two days between the date of occurrence and recording of statement (Exh.101), we are of the view that it was necessary for the prosecution to obtain fitness certificate of Doctor before recording statement of deceased Sadhana (Exh.101).

28. Similarly, recitals in the statement (Exh.101) show that there are number of facts, which are brought on record by the prosecution for the first time in the form of the said statement. The evidence of PW 8 Pawar, Executive Magistrate and PW 10 Wasudeo shows that the story told by deceased Sadhana to them apart from being inconsistent with each other in respect of material particulars does not inspire confidence. The same is also contradictory to the oral dying declarations alleged to have been made by deceased Sadhana to PW 1 Suryakanta and PW 5 Narmada and, therefore, it is difficult to place reliance on Exhs.96 and 101.

29. It is no doubt true that minor inconsistencies or slight variations in the dying declarations recorded by the prosecution would not ipso facto render the evidence of dying declaration unreliable or untrustworthy particularly because these are the utterances of dying person and, therefore, basic legitimacy is attached to these utterances. In the instance case, there are two oral and two written dying declarations brought on record by the prosecution. However, because of the basic infirmity as well as inherent inconsistency in the testimonies of these witnesses regarding story alleged to have been told to them by deceased Sadhana, serious doubt about authenticity and truthfulness of the prosecution case is created and, therefore, in our considered view, it will be highly unsafe to place reliance on such prosecution evidence.

30. In the instant case, it is not in dispute that appellant Pradip was also admitted in the Hospital along with deceased Sadhana for the treatment of burn injuries and was continued to be in the Hospital from 6-11-1995 to 27-11-1995. However, there is absolutely no explanation forthcoming from the prosecution as to how appellant Pradip received those burn injuries. In the absence of any explanation from the prosecution, defence taken by appellant Pradip in this regard and as reflected in his statement under Section 313 of Code of Criminal Procedure that on the date of incident, while he was taking bath, he heard shouts of his wife and, therefore, came out of bath-room and tired to extinguish fire and thereafter took his wife to the Hospital at Akola appears to be probable. The prosecution has also not produced injury certificate, if any, issued by the Doctor in respect of percentage of burn injuries sustained by appellant Pradip. However, the fact remains that appellant Pradip was in the Hospital for treatment of his burn injuries from 6-11-1995 to 27-11-1995, which shows that burn injuries suffered by him were serious in nature, which required 21 days' hospitalisation. Failure on the part of the prosecution to explain the burn injuries sustained by appellant Pradip amounts to suppression of material facts from the Court and renders prosecution case highly doubtful.

31. It is no doubt true that in the instant case, PW 6 Dr. Prashant Waichal conducted post-mortem examination and opined that cause of death of Sadhana was due to septicaemic shock due to extensive burns to the extent of 96%. However, medical evidence only demonstrates the nature and type of burn injuries sustained by deceased Sadhana and percentage of burns. It is for the prosecution to establish beyond all reasonable doubts the author of the injuries by adducing cogent and convicting evidence. In the instant case, since we have discarded the evidence of dying declarations, the medical evidence on its own is wholly inadequate to bring home the guilt of the appellants.

32. In the instant case, there is another aspect, which needs consideration, i.e. whether conviction of appellant Pravin for the offence punishable under Section 354 of Indian Penal Code in view of provisions of Section 32(1) of Indian Evidence Act, 1872 can be sustained in law, apart from the fact that dying declarations are already discarded by us as untrustworthy. Deceased Sadhana in her dying declarations has alleged that appellant Pravin either outraged her modesty or raped her prior to the incident in question. However, the said statement by deceased Sadhana does not relate to cause of her death or any of the circumstances of the transaction, which resulted in her death and, therefore, the said statement is not admissible in law in view of Section 32(1) of the Indian Evidence Act, 1872 and cannot be relied upon for awarding conviction to Pravin for the offence punishable under Section 354 of Indian Penal Code. Consequently, conviction awarded to appellant Pravin for the offence punishable under Section 354 of Indian Penal Code on the basis of such inadmissible evidence cannot be sustained.

33. In the instant case, the trial Court has disbelieved the evidence of dying declaration so far as it relates to complicity of appellant Pravin and co-accused Parwatabai for the offences punishable under Sections 498-A and 302 read with Section 34 of Indian Penal Code and the State has not preferred any appeal against the same. It is evident that the trial Court also did not consider the part of the prosecution evidence trustworthy or truthful and, therefore, acquitted appellant Pravin as well as co-accused Parwatabai for the said offences.

34. On the backdrop of the above aspect, when we evaluate the prosecution evidence available against appellant Pradip, we are of the view that same is not materially different than the other prosecution evidence which relates to complicity of appellant Pravin and co-accused Parwatabai, which was disbelieved by the trial Court. As we have already observed hereinabove, it has come in the evidence of PW 5 Narmada that deceased Sadhana told her that her husband, brother-in-law and mother-in-law poured kerosene on her person whereas PW 1 Suryakanta had deposed that deceased Sadhana told her that her husband poured kerosene on her person and set her on fire. So far as evidence of PW 8 Pawar, Executive Magistrate is concerned, deceased Sadhana made a general statement that her saree was set on fire after kerosene was poured on her person. However, she did not mention who had put her saree on gas burner, which was on. PW 10 Wasudeo, who recorded Exh.101, has stated in his evidence that deceased Sadhana told him that on 6-11-1995 her mother-in-law Parwatabai and brother-in-law Pravin caught hold of her and her husband poured kerosene on her person and set her on fire. It is, therefore, evident that there is an inherent inconsistency in respect of complicity of all the accused persons in the crime in question and, therefore, part of the prosecution evidence has already been discarded by the trial Court as not trustworthy, in our view, rightly so and we are of the view that remaining part of the prosecution evidence including that of dying declaration so far as it relates to role played by appellant Pradip in the crime in question, for the reasons stated hereinabove, is equally doubtful and untrustworthy and, therefore, cannot be believed.

35. It is no doubt true that many years prior to the incident in question, i.e. in the year 1993, deceased Sadhana had lodged a report to the Police against appellants as well as co-accused Parwatabai and on the basis thereof, they were prosecuted for the offence punishable under Section 498-A of Indian Penal Code. The issue was amicably settled amongst the parties and deceased Sadhana thereafter once again started cohabiting with appellant Pradip and other accused persons. There is no positive or cogent evidence adduced by the prosecution in order to show that prior to the incident in question, deceased Sadhana was subjected to cruelty by appellant Pradip though there are few general statements made in this regard by deceased Sadhana in her dying declarations except the last dying declaration (Exh.101), which was recorded on 8-11-1995 wherein for the first time deceased Sadhana has given details about the nature of ill-treatment meted out to her. Since deceased Sadhana has not specifically mentioned about nature of ill-treatment meted out to her by Pradip either in her oral dying declarations or in her dying declaration, which was recorded by Executive Magistrate, it is difficult for us to place reliance on the statement made by deceased Sadhana in this regard in her fourth dying declaration (Exh.101) recorded on 8-11-1995, which appears to be an after-thought. Even otherwise, appellant Pradip prior to the incident in question was posted by his Department at Nagpur and was residing alone at Nagpur. In our view, the evidence adduced by the prosecution is inadequate to bring home the guilt of appellant Pradip also for the offence punishable under Section 498-A of Indian Penal Code.

36. For the reasons stated hereinabove, both the criminal appeals are allowed. The conviction and sentence including sentence of fine awarded by the Trial Court to appellant Pradip for the offences punishable under Sections 302 and 498-A of Indian Penal Code are set aside. Similarly, conviction and sentence including sentence of fine awarded by the trial Court to appellant Pravin for the offence punishable under Section 354 of Indian Penal Code are set aside. Both the appellants be released forthwith, if not required in any other criminal case. The amount of fine, if paid, be refunded to the appellants.

Appeal allowed.