SUBHASH AND ORS. Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) The present appellants/accused Nos. 1 and 2 are prosecuted for the offences punishable U/Sec. 302 and 504 read with Sec. 34 of the Indian Penal Code (for short " I. P. Code").

(2.) As Per The Prosecution Case, On Or About 28Th December, 2009 at 06.00 a.m. the deceased Sau. Sunita Sanjay Chavan had been to fetch water by means of Pohara (bucket) from well. The accused persons were nearby the well. They tried to snatch the bucket and rope from the deceased. The same was resisted by the deceased. Both the accused persons abused her. The deceased returned home. Both of them followed her. They abused her when she reached her house. The neighbouring persons convinced the accused persons. The accused persons brought kerosene in a plastic can from their house with a match box, poured kerosene on her person and ignited her. The complainant's saree caught fire. She received burn injuries. One Vinod Kaluram Rathod threw water on her person and also gunny bags so as to extinguish fire. The deceased Sunita sustained 98% burns. She was shifted to Civil Hospital Hingoli. Two dying declarations Exhibit 19 and Exhibit 29 were recorded. Exhibit 19 was recorded by the Police Officer, whereas Exhibit 29 was recorded by the Awwal Karkun of the Tahsil Office. It was also story of prosecution that the oral dying declaration was made to the father and mother i. e. P.W. Nos. 6 and 7. The prosecution had also examined one Vinod Rathod who had extinguished the fire. Upon appreciation of the evidence, the Sessions Court convicted accused No. 1/Subhash Chavan for the offences punishable U/Sec. 302 and 504 of the I. P. Code and the accused No. 2/Pappu Chavan for an offence punishable U/Sec. 504 of the I. P. Code.

(3.) Mr. Chatterji, the learned counsel for the appellant strenuously contends that the case of the prosecution rests solely on the dying declarations Exhibit 19 and Exhibit 29, so also oral dying declarations made to the P.W. No. 6 and 7. According to the learned counsel, if all the four dying declarations are read together, it would be clear that, the said dying declarations are inconsistent with each others. Each dying declaration is laying down a different story, which cannot be believed. The said dying declarations do not inspire confidence. It is the case of multiple dying declarations and when it is a case of multiple dying declarations, the inconsistencies would be vital to the prosecution case. According to the learned counsel, the material divergence will have to be considered. The learned counsel relies on the judgment of the Apex Court in the case of Dandu Lakshmi Reddy Vs. State of A. P., 1999 AIR(SC) 3255. The learned counsel also relies on the judgment of the Apex Court in a case of P. V. Radhakirishana Vs. State of Karnataka, 2003 AIR(SC) 2859 to submit that, dying declaration is only piece of untested evidence and must satisfy the Court that what is stated therein is unalloyed truth to act upon. The learned counsel submits that, Exhibit 19 cannot be considered, as the same is made in presence of the father of the deceased. The father of the deceased has also signed the said dying declaration. Such a dying declaration cannot be relied. The possibility of tutoring cannot be ruled out. For the said purpose, the learned counsel relies on the judgment of this Court in the case of Sunil Kashinath Raimale Vs. State of Maharashtra, 2006 CrLJ 589.