ORDER
D. D. Sinha, J.
1. The present criminal appeal is preferred by the appellant/ original accused No. 1 against the judgment and order dated 26-11-1993 passed by the Additional Sessions Judge, Hingoli in Sessions Case No. 14 of 1993, whereby the original accused No. 1, the present appellant is convicted for the offence punishable under section 304 Part II of the Indian Penal Code, and is sentenced to suffer rigorous imprisonment for a period of seven years and also directed to pay a fine of Rs. 1,000/-, in default to suffer imprisonment for one year.
2. It will be appropriate for us to consider the few facts of the case which have resulted in prosecution of the present appellant for the offences charged before we appreciate the prosecution evidence on record.
3. That deceased Manglabai was the wife of the appellant/accused No. 1 and was working in Rural Hospital as Staff Nurse at Hingoli. Mangalabai was married to the present appellant/original accused No. 1 about 2 1/2 years prior to the incident in question. It is the case of the prosecution that after their marriage, the accused and Manglabai were residing in the quarters allotted by the Hospital to Smt. Manglabai. It is the case of the prosecution that the appellant/accused was unemployed person, who used to demand money from Manglabai off and on. Original accused Gayabai is the mother of the present appellant. Original accused Gajanan and Kanhopatra are the brother and sister of the present appellant. It is the case of the prosecution that all the above referred accused used to harass Manglabai on account of money. All of them used to abuse her and beat her. It is alleged that the appellant/accused had illicit relations with one Rajeshri, who used to reside adjacent to their house. It is further alleged that there used to be quarrels between the appellant/accused and his wife deceased Manglabai on this count and, therefore, accused Ganpat used to sleep outside the house.
4. On 3-1-1993, deceased Manglabai was on duty from 2 p.m. to 8 p.m. and alter finishing her duty, she returned to her quarters. At that time, accused No. 1 Ganpat (appellant) was not present in the quarters. Manglabai started cooking meals in the house. It is the prosecution case that after the cooking was over, Manglabai waited for her husband and at about 10 p.m., her husband i.e. present appellant/accused returned to the house and he immediately went to the bed. It is alleged by the prosecution that Manglabai requested accused Ganpat to take meals. However, he refused to take meals. It is further alleged by the prosecution that accused Ganpat thereafter started assaulting Manglabai, who requested him to allow her to sleep with him. However, accused Ganpat did not allow her to sleep with him. It is the case of the prosecution that at this juncture, accused Ganpat insisted that deceased Manglabai should give him some amount, then only accused would allow her to sleep with him. It is alleged that since Manglabai did not have money, she was not in a position to give any amount to the accused and because of that accused Ganpat got angry and again started beating her. Manglabai thereafter went into the kitchen room and sat there. At that time, accused Ganpat came there and uttered that he disliked her and he would set her on fire or he would hang her. Deceased Manglabai tried to convince Ganpat not to do such thing. However, accused Ganpat, then, opened the knob of the stove and poured kerosene on her person. Deceased Manglabai did not take all this seriously since she had a faith in her husband i.e. accused Ganpat. She did not think that accused Ganpat would set her on fire. It is further alleged by the prosecution that deceased Manglabai thereafter left the kitchen and went to the bed. Accused Ganpat followed her and again demanded money from her. It is the case of the prosecution that Manglabai again came into the kitchen room. Accused Ganpat also came into the kitchen room and set her on fire.
5. it is alleged by the prosecution that after she was set on fire by the accused, she started shouting for help, but nobody came to rescue her because the door of the house was locked from inside. Accused Ganpat did not try to extinguish the fire. Deceased Manglabai tried to come out of the house. However, nobody came forward to help her. She sustained serious burn injuries on her person. It is the case of the prosecution that the present appellant Ganpat, i.e. the husband of Manglabai, with the help of others took deceased Mangla to the hospital at about 2.40 a.m. on 4-1-1993. Medical Officer Dr. Deshpande was on duty at that time, who admitted deceased Mangla in the hospital. He also informed the police about the same.
6. A.S.I. Devidas Deshmukh immediately came to the hospital and noticed that Manglabai had sustained extensive burn injuries. He made injuries with the Medical Officer, whether Manglabai was in a conscious state to give the statement. Dr. Deshpande certified that the patient was in a conscious state. At about 4.05 p.m. on 4-1-1993, A.S.I. Deshmukh (P.W.2) recorded the statement of deceased Mangla. At that time, she was in a conscious state. This statement was treated as first information report regarding the crime in question. Accused Ganpat was present in the hospital. The offence bearing C.R. No. 3 of 1992, under sections 307 and 498-A read with section 34 of the Indian Penal Code, came to be registered against the present appellant along with other co-accused.
7. The Police Station Officer also issued a letter to the Executive Magistrate, Hingoli for recording the dying declaration of deceased Mangla. Accordingly, Executive Magistrate P.W. 3 Bhagat visited the said hospital, disclosed his identity to the Medical Officer Dr. Deshpande and recorded the dying declaration of deceased Manglabai after obtaining the opinion of the condition of the deceased from Dr. Deshpande. Since the condition of deceased Manglabai was deteriorating, she
was referred to the General Hospital at Parbhani, where she breathed her last. After the death of Manglabai, the offence was converted into section 302 of the Indian Penal Code.
8. P.W. 10 P.S.I. Rajput completed the routine investigation and submitted the charge-sheet against the present appellant and others to the Court of Judicial Magistrate, First Class, Hingoli. The learned Judicial Magistrate, First Class thereafter committed the case to the Court of Sessions, Parbhani for trial. The present appellant/ accused No. 1 and other three co-accused were charged with the offences punishable under section 498-A read with section 34 of the Indian Penal Code. The present appellant/accused is also separately charged with the offence punishable under section 302 of the Indian Penal Code. The charge was read over to the accused persons to which all of them pleaded not guilty. Their defence is of total denial.
9. The learned Additional Sessions Judge has acquitted accused Nos. 1 sic 2 to 4 Gayabai, Gajanan and Kanhopatra for the offence punishable under section 498-A read with section 34 of the Indian Penal Code, and since the State Government has not preferred any appeal against the judgment and order of acquittal, it is not necessary for us to consider the finding arrived and the reasoning given by the learned trial Court in acquitting the original accused Nos. 2, 3 and 4.
10. The learned Counsel for the appellant/accused contended that the order of conviction passed by the learned trial Court against the present appellant for the offence under section 304 Part II of the Indian Penal Code, is not sustainable in law since the appreciation done by the trial Court is misconceived. The learned Counsel contended that the evidence of P.W. 1 Dr. Deshpande, P.W. 6 Nanda and P.W 7 has not been properly considered by the trial Court, particularly with regard to the fact that though these witnesses were known to the deceased Mangla and belonged to the same medical profession, she did not disclose anything to them regarding the cause of incident, which creates serious doubt about the authenticity of the two dying declarations made or given by deceased Mangla. The learned Counsel submitted that these prosecution witnesses i.e. Dr. Deshpande, Smt. Nanda and Smt. Raubai are not speaking truth because their evidence does not show that they had inquired from deceased Manglabai about the cause of burns which she has sustained in the incident. The learned Counsel further submitted that P.W. 8 Kundlik (father of Manglabai) and P.W. 9 Prayagbai (mother of Manglabai) met Manglabai in the hospital just before recording her dying declarations and it is because of their tutoring and pressure, deceased Manglabai, for the first time, disclosed in her dying declaration that present appellant/ accused i.e. her husband had poured kerosene on her person and set her on fire.
11. The learned Counsel further contended that both the dying declarations are not consistent with each other and the story put forth by deceased Manglabai and the sequence of events narrated by her in these two dying declarations are inconsistent and, therefore, ought not to have been accepted by the trial Court.
12. The learned Counsel, alternatively, contended that deceased Manglabai had sustained 100% burn injuries and was also administered pethidine (Cedatrin), pain killer, she could not have remained conscious and could not have given such a elaborate statement. The learned Counsel further contended that there is no mention in the M.L.C. register about the history of the patient i.e. Manglabai by Dr. Deshpande (P.W. 1), who at the relevant time, was on duty in the hospital and had admitted Manglabai in the hospital.
13. The learned Counsel, therefore, contended that the entire prosecution evidence adduced by the prosecution does not prove the prosecution case beyond reasonable
doubts against the present appellant for the offences charged and hence the conviction recorded by the trial Court for the offence under section 304 Part II of the Indian Penal Code, is not sustainable.
14. The learned Additional Public Prosecutor, on the other hand, supported the order of conviction against the present appellant and contended that the conviction in the present case is based on dying declarations (Exh. 18 and Exh. 24) made by deceased Mangala. The learned A.P.P. further submitted that the first dying declaration i.e. Exh.18 was recorded by P.W. 2 A.S.I. Deshmukh in the hospital immediately after deceased Mangala was admitted in the hospital. It is further submitted that the perusal o! the dying declaration (Exh.18) would show that deceased Mangala has disclosed in the said dying declaration all material particulars of the prosecution case and specifically implicated the present appellant as author of the crime. It is further canvassed before us that deceased Mangala has specifically stated in the dying declaration (Exh.18) that on the day of incident, her husband i.e. present appellant returned home at about 10.00 p.m. and started demanding money from deceased Mangala. Since she could not pay him, he started beating her. She has further stated in the dying declaration (Exh.18) that when she went inside the kitchen room, the appellant followed her and also went inside the kitchen room, removed the knob of the stove and poured kerosene on her person and set her on fire. The learned A.P.P. contended that both the dying declarations are consistent with regard to the material particulars of the prosecution case as disclosed by deceased Mangala. It is also pointed out by the learned A.P.P. to us that deceased Mangala was the wife of the appellant and at the relevant time, was residing with the appellant. The appellant was present in the house. The appellant did not try to extinguish the fire. The Chemical Analyser’s report reveals that the kerosene was found on the clothes of the deceased and, therefore, the story put forth in the dying declarations, is corroborated by medical evidence as well as the report of the Chemical Analyser and the trial Court has rightly accepted the same while awarding the conviction.
15. It is well settled that the conviction can be based on the testimony of the dying declaration. However, it is the duty of the Court to carefully scrutinize the same to get satisfied, that the dying declaration is true and is free from any effort to prompt the deceased to make a statement and is coherent and consistent. There is no legal impediment in founding the conviction on the testimony of dying declaration, if the statement of dying person passes the test of careful scrutiny applied by the courts.
16. In the tight of the arguments advanced by the learned Counsel for the appellant as well as State and’also requirement of section 32 of the Evidence Act, as referred above, it is necessary to scrutinize the evidence adduced by the prosecution in the instant case.
17. The evidence of Dr. H.R. Deshpande (P.W. 1) reveals that at the relevant time, he was attached to the Rural Hospital, Hingoli as Medical Officer. On 4-1-1993, he was on duty and at about 2.40 a.m., deceased Mangala Kundlik Shirsath was admitted in the hospital by him. She had sustained extensive burn injuries. At about 3.00 A.M. he had informed the police, Hingoli (town) vide Exh. 17. The examination-in-chief of this witness further discloses that he has certified that the patient was conscious and answers the questions properly. He has also signed below the endorsement. The police also obtained the signature oi the deceased Mangala on the statement (Exh. 18). It has also come in the examination-in-chief of this witness that at about 3.40 a.m. on the same day, Executive Magistrate of Hingoli came to the hospital and recorded the statement of patient (deceased Mangala) and before it was recorded, this witness has certified that the deceased Mangala was in a conscious state to give statement.
Deceased Mangala signed the second dying declaration in his presence. P.W. 1 has stated in his cross-examination that in the M.L.C. register there are columns in respect of entry of patient in the hospital, history of the assault and nature of injury, etc, This witness has admitted in the cross-examination that M.L.C. registers are available in every Government Hospitals. This witness has also specifically stated in his cross-examination that he is not in a position to state what history was given by the patient deceased Mangala to him in respect of burns.
18. It is admitted position that P.W.1 Dr. Deshpande, at the relevant time was attached to the Rural Hospital, Hingoli as a Medical Officer. Similarly deceased Mangala was working in the said hospital as a Staff Nurse and, therefore, it is quite unlikely that P.W. 1 was not knowing deceased Mangala. Apart from the fact that P.W. 1 has not written in the M.L.C. register what history was given by deceased Mangala to him in respect of her burns, it is surprising as to why P.W. 1, on his own, did not ask deceased Mangala about the cause of the incident in which she had sustained burn injuries. The entire evidence of this witness is totally silent in this regard. Similarly, the extent of burn injuries sustained by deceased Mangala was that of 100%. The deceased Mangala was alleged to have been set on fire at about 11 p.m. on 3-1-1993. It is not disputed that she was admitted in the hospital at about 2.40 p.m. on 4-1-1993 i.e. after almost 3 hours and 40 minutes. The evidence of this witness (P.W.1) does not show that though he was known to the deceased, why he had not inquired about the cause of burn injuries and why has he not written history in the M.L.C. register. All these circumstances would create a suspicion as to whether the deceased Mangala was in a position to give such information about the incident when she was admitted in the hospital.
19. The evidence of P.W. 6 Nanda d/o Shankar Chavan would show that this witness was known to deceased Mangala and was attached to the said hospital and was working as Staff Nurses. This witness has been provided with residential quarters in the campus of the hospital, which was adjacent to the residential quarters of deceased Mangata. P.W. 6 Nanda, in her examination-in-chief has stated that at about 2.15 a.m. on 4-1-1994, she heard the shouts from the quarters of Mangala. On hearing those shouts, witness Nanda (P.W. 6) rushed towards the house of Mangala. When she reached the house of Mangala, she noticed that Mangala was lying in verandah and was asking for water. This witness has noticed burn injuries on her person. According to this witness, one Bangar (Compounder), who was residing nearby also came there and some other persons also gathered. It is pertinent to note that though P.W. 6 Nanda was very well known to deceased Mangala and also was working in the same hospital, why she did not ask deceased Mangala about the cause of burn injuries sustained by her, which according to us, is not only surprising but also inconsistent with the normal human conduct. This witness though has claimed to have seen deceased Mangala in her house at about 2.15 a.m. in a burn condition, it is inconceivable that this witness did not inquire anything from her about the cause of burns sustained by her, especially in view of the above referred facts and circumstances, which creates serious doubt as to whether Mangala was in a position to give such information about the incident at the relevant time i.e. at about 2.15 a.m. when this witness had gone to the house of Mangala.
20. The perusal of evidence of P.W. 7 Raubai would show that this witness was also serving as a Staff Nurse in the Rural Hospital at Hingoli at the relevant time and was residing in the quarters provided by the Hospital in the Campus of the hospital itself. This witness was very well known to the deceased Mangala. This witness has stated in her examination-in-chief that she was on duty from 8 p.m. on 3-1-1993 till 8 a.m. on 4-1-1993. According to this witness, on that day, Dr. Deshpande was also on
duty who came in the Nurse’s Staff Room and informed this witness that deceased Mangala sustained severe burn injuries. This witness has stated in her examination -in-chief that thereafter Dr. Deshpande i.e. P.W. 1 and this witness and staff went to the quarters along with a stretcher. They noticed that Mangala was lying in verandah in burnt condition. They have shifted Mangala to hospital as per directions of Dr. Deshpande. She treated deceased Mangala. This witness, in her examination-in-chief, has specifically stated that she did not ask anything to the deceased Mangala. P.W. 7 in her cross-examination has stated that she knew parents of deceased Mangala and when they shifted Mangala in the hospital, the parents of deceased Mangala were present in the hospital. The entire evidence of this witness does not show that in spite of this witness knowing deceased Mangala very well, and was working in the same Rural Hospital at Hingoli as Staff Nurse and was residing in the campus of the hospital, why did she not even bothered to inquire from Mangala the cause of burns sustained by her, which according to us is not a normal human conduct and creates a serious doubt as to whether deceased Mangala was really in a position to narrate any incident at the relevant time to this witness.
21. The evidence of P.W.1 Dr. Deshpande, P.W. 6 Nanda and P.W. 7 Raubai appears to be not straight forward and we feel that all these witnesses are trying to suppress the material facts and are not giving out the true picture regarding the sequence of events and the condition of deceased Mangala when she was admitted in the hospital. As observed by us above, the conduct of these witnesses is also not normal human conduct which is expected in the circumstances of the present case, which creates a serious doubt about the mental as well as physical condition of deceased Mangala at the time of admission in the hospital and even thereafter.
22. Similarly, the material brought on record by the prosecution clearly demonstrates that deceased Mangalabai was alleged to have been set on fire at about 11 P.M. on 3-1-1993 and was admitted in the hospital at about 2.40 a.m. on 4-1-1993. It is also evident that between 11 p.m. and 2.40 a.m., P.W. 1 Dr. Deshpande, P.W. 6 Nanda and P.W. 7 Raubai met deceased Mangalabai. All these three witnesses were not only known to the deceased, but were also attached to the same Rural hospital in which deceased Mangla was a Staff Nurse. In spite of that deceased Mangla has not disclosed to anybody anything either about the alleged incident in question or about the cause of burn injuries sustained by her though she had an opportunity to disclose the same at least to these witnesses, who were closely acquainted with her. But, the fact remains that neither deceased Mangla disclosed anything about the alleged incident of setting her on fire by the appellant nor these witnesses had inquired from her about the cause of burn injuries sustained by her.
23. On the backdrop of these facts and circumstances, it will be appropriate now for us to consider and appreciate the evidence of P.W. 8 Kundlik (father of Mangla) and P.W. 9 Prayagbai (mother of deceased Mangla). It has come in the evidence of P.W. 8 that on 3-1-1993, accused Ganpat had gone to the house of this witness and informed him that he had set his wife i.e. Manglabai on fire and further asked this witness to bring the ambulance. This witness thereafter along with his wife P.W. 9 Prayagbai went to the house of the deceased and noticed that Mangla was lying on the ground in a burnt condition. This witness has inquired her as to how she sustained the injuries. Deceased Mangala told him that the appellant/accused demanded Rs. 200/- from her. However, she did not give the said amount to him, which resulted in some quarrel between them. Accused Ganpat tied her hands, poured kerosene on her person and set her on fire. This witness has admitted in his examination-in-chief that deceased Mangla was shifted to the hospital by the persons from the hospital.
There are material omissions in the testimony of this witness P.W. 8. This witness has not stated before the police that all the accused were demanding money from deceased Mangla when she was residing at Hingoli. This witness has also not stated before the police that accused Ganpat informed this witness that Mangla was set on fire by him. Apart from the above referred ommissions, the evidence of this witness is also full of exaggerations and improvements. The story put forth about the alleged incident in question by this witness in his examination-in-chief is inconsistent with the disclosures made by the deceased in her dying declarations (Ex. 18 as well as Exh. 24), particularly in regard to tying of the hands of the deceased by the accused before pouring kerosene on her person and setting her on fire. The evidence of this witness, therefore, does not inspire confidence and renders his testimony doubtful. While considering the testimony of RW. 9 Prayagbai we find that this witness has given some what different version about the sequence of events than RW. 8 Kundlik. It has come in the evidence of this witness that accused Ganpat had gone to her house and informed her and RW. 8 Kundlik that Mangla sustained burn injuries. The evidence of this witness is completely silent in regard to the fact narrated by RW. 8 Kundlik that accused Ganpat had informed them that Mangla was set on fire by him. The evidence of this witness also does not show that deceased Mangla told her about tying of her hands by the accused and pouring of kerosene on her person. Similarly, there is a material omission in the evidence of this witness regarding the demand of dowry by the accused. The totality of Ihe evidence of this witness i.e. RW. 9 apart from being inconsistent with the testimony oi RW. 8 Kundlik is also not straight forward and free from doubt.
24. Now we come to the important piece of evidence produced by the prosecution i.e. dying declarations given by deceased Mangla (Ex. 18 and Ex. 24). The dying declaration (Ex. 18) is recorded in the Rural Hospital. The material particulars and information disclosed by deceased Mangla in Exh. 18 are that on 3-1-1993, at about 10 p.m., her husband i.e. accused returned home and went to sleep. She has thereafter stated that she told him to eat pease, but he did not eat. She thereafter requested the appellant to allow her to sleep with him, but the appellant assaulted her by giving fist blows and told her that he would not allow her to sleep with him. She has further stated that accused Ganpat thereafter started demanding money. However, she did not have money and hence could not pay to him. She has further stated that she went in the kitchen room. Accused Ganpat also followed her into the kitchen room. Accused Ganpat opened the knob of the stove and poured kerosene on her head and other part of her body. She has further stated that she did not take it seriously and she never thought that accused Ganpat would set her on fire and, therefore, she went to bed. She has further stated in the Exh. 18 that accused Ganpat again demanded money from her. She got up from the bed and again came into the kitchen room. Accused Ganpat also followed her and went into the kitchen room and set her on tire. She has also stated that she has shouted Jor help. However, nobody came to her rescue including her husband Ganpat. She has further stated that thereafter she went out of the house and tried to find out whether anybody had come to rescue her. She has further stated that her husband accused Ganpat thereafter called the persons from the Rural Hospital and admitted her in the hospital. The last paragraph of dying declaration (Ex. 18) is in the form of summary of the entire incident stated by deceased Mangla which she had already stated above in Exh. 18. While considering the contents and disclosure made by deceased Mangla in Exh. 18, it is clear that no sooner accused Ganpat returned home at 10 or 10.30 p.m. on 3-1-1993, he straight way went to bed and gone to sleep. It this fact is accepted, then it is very difficult for us to believe that accused Ganpat could said to have any intention of causing any trouble
to his wife i.e. deceased Mangla either on account of demand of money or dowry and could have further entertained any intention to set her on fire if his demands are not fulfilled by Mangla. Similarly, the conduct of deceased Mangla after the accused poured kerosene on her head and other parts of body is not a normal human conduct. In our opinion, it is inconceivable that any woman, on whose person the kerosene is poured for the purposes of setting her on fire, would not understand the gravity of the situation and would treat this act casually and lightly and would go to the bed. The entire dying declaration Exh. 18, according to us suffers from inherent improbabilities and fails to inspire any confidence.
25. It is the prosecution case that P.W. 3 Bhagat, the Executive Magistrate also recorded another dying declaration of deceased Mangla on 4-1-1993, which is Exh.
24. In Exh. 24 deceased Mangla has stated that on 3-1-1993, at about 11 p.m., her husband Ganpat demanded money and there was some quarrel on account of that. She has further stated that accused Ganpat poured kerosene on her person in the kitchen room and set her on fire. The disclosure made by deceased Mangla in Exh.24 in respect of the sequence of events which have resulted in the incident of setting her on fire by accused Ganpat, are at variance with the facts stated by her in her earlier dying declaration Exh. 18. Deceased Mangla has stated in Exh. 24 that when she was completely burnt, at that lime her husband/accused Ganpat covered her body with the quilt and tried to extinguish the fire. As already stated by us, the material particulars disclosed by deceased Mangla in Exh. 24 about the sequence of events and in respect of happening of the factual incident, are not only inconsistent with her earlier
dying declaration Exh. 18, but puts forth a different set of facts in which the alleged incident of setting her on fire had taken place. In our opinion, therefore, the dying declaration (Ex. 24) cannot be said to be truthful, straight-forward, consistent and cogent and, therefore, it also fails to inspire confidence about the authenticity of the facts narrated by the deceased in Exh. 24. For the reasons stated above, in our opinion, therefore, it will be unsafe to place reliance on the dying declarations Exhs. 18 and 24 individually or cumulatively for the purposes of awarding conviction for the offences charged.
26. While appreciating and carefully scrutinizing the entire prosecution evidence including dying declarations made by the deceased, we have noticed following circumstances, which render the case of the prosecution in totality suspicious and creates a serious doubt about its truthfulness. Those circumstances are as follows:
i) Though the alleged incident in question had taken place at 11.30 p.m. deceased Mangla remained completely silent for about three hours and did not disclose about the incident to anybody;
ii) P.W. 1 Dr. Deshpande, P.W. 6 Nanda and P.W. 7 Raubai though met deceased Mangla before she was admitted in the hospital, she did not disclose to any of them either about the alleged incident in question or the cause of her burn injuries;
iii) P.W. 1 Dr. Deshpande, in spite of being aware of the procedure, did not mention anything in the M.L.C. register regarding the history of the patient i.e. deceased Mangla;
iv) Deceased Mangla, for the first time implicated accused Ganpat with the crime in question nearly more than three hours after the incident and remained silent till then;
v) The conduct of P.W. 1 Dr. Deshpande, P.W. 6 Nandabai and P.W. 7 Raubai in not inquiring from Mangla in spite of knowing her very well about the cause of burn injuries sustained by her when these witnesses met Mangla before she was admitted in the hospital;
vi) The sequence of events stated by deceased Mangla in her dying declarations (Exs. 18 and 24) apart from being at variance, suffer from inherent improbabilities;
vii) The motive suggested by the prosecution that there was a quarrel between deceased Mangla and accused on account of demand of money or not allowing deceased Mangla to sleep with him or on account of not eating pease appears to be very feeble and could not have led the accused to take drastic step to set his wife on lire;
viii) PW. 6 Nandabai in her cross-examination has stated that the brother of deceased Mangla, namely Raju used to reside with her and was taking education. However, the prosecution did not examine Raju for the reasons best known to the prosecution, who would have supported the prosecution in untolding the prosecution case.
All the above referred circumstances create a serious doubt about the entire prosecution case, which further render the prosecution evidence unacceptable. Hence there appears to be much force in the contentions raised by the learned Counsel for the accused.
27. It is an admitted position that at the relevant time deceased Mangla was in the kitchen and was engaged in boiling/frying pease on the stove. The possibility of burns being caused accidentally when Mangala was near the stove cannot be ruled out. Her silence for nearly about more than three hours and implicating the accused thereafter creates serious doubt about the truthfulness of the dying declarations i.e. Exhs. 18 and 24 and renders both the dying declarations unacceptable.
28. For the reasons stated above, we are of the opinion that the appreciation done by the Lower Court and the finding arrived at are misconceived, devoid of substance and unsustainable in law. Hence the impugned judgment and order dated 26-11-1993 passed by the Additional Sessions Judge, Hingoli in Sessions Case No. 14 of 1993 is hereby quashed and set aside. The appellant/accused is hereby acquitted of the offence punishable under section 304 Part II of the Indian Penal Code. He be set at liberty, if not required in any other case. Fine paid, if any, be refunded to the appellant/ accused. Accordingly the Criminal Appeal is allowed.
29. Appeal allowed.