JUDGMENT
A.S. Bagga, J.
1. The Criminal appeal is directed against the judgment and order dated 29.6.1994, passed by learned 2nd Additional Sessions Judge, Parbhani in Sessions Trial No. 99/1991, whereby the appellant Burakhbee (original accused No. 1) has been convicted for the offence punishable under Section 302 of the Indian Penal Code and has been sentenced to undergo imprisonment for life and to pay fine of Rs. 500/-, in default rigorous imprisonment for fifty days. By the same judgment, the other accused persons, namely accused Nos. 2 to 7 have been acquitted of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. All the accused persons, including the present appellant, have been acquitted of the offence punishable under Section 498-A read with Section 34 of the Indian Penal Code.
2. The prosecution story runs as under : Deceased Halimabee was married to Salauddin 10 to 11 months prior to the date of incident. The appellant Burakhbee is the sister-in-law of the deceased (wife of elder brother of deceased’s husband Salauddin). It is stated that present appellant Burakhbee (original accused No. 1) harboured jealousy and grudge against the deceased for the reason that Salauddin, instead of marrying her relative, got married to deceased Halimabee. It was for this reason that Halimabee, after marriage, was allegedly ill-treated by all the accused persons,
3. It is stated that on 3.4.1991 at about 10.00 a.m., when Halimabee was folding clothes in her matrimonial house, the appellant (original accused No. l) Burakhbee came from her back side, poured kerosene on her person and set her on fire with a m a t c h stick. The deceased caught fire and cried for help. Pashamiya, her brother-in-law, came to her rescue and extinguished fire by pouring water on her person. She was rushed to the hospital. In the hospital her report was recorded by Police Head Constable attached to the Outpost of the Hospital. This report was later treated as F.I.R. Executive Magistrate was summoned and he recorded the dying declaration of the deceased. In the dying declarations, the deceased blamed the present appellant for having set her on fire. Offences came to be registered and all the accused persons, including the present appellant and other relatives of the husband of the deceased, numbering 7, came to be prosecuted for the offences punishable under Sections 498-A and 302 read with Section 34 of the Indian Penal Code.
4. Before learned trial Judge, the evidence of Head Constable, who recorded the first dying declaration-cum-F.I.R. and the evidence of the Executive Magistrate, who recorded the second dying declaration, was recorded. Apart from this, the medical officer, who certified that the declarant was able to make the statement as also the evidence of parents of the girl was recorded. Learned trial Judge accepted the dying declarations, which were proved and on the basis of these dying declarations, learned Judge found the present appellant guilty of the offence punishable under Section 302 of the Indian Penal Code and sentenced her as stated in the initial paragraph of this judgment. Learned trial Judge, however, did not find satisfactory evidence for holding any of the other accused guilty of ill-treatment or cruelty. Similarly, no evidence was found against other accused persons for holding them guilty for the offence punishable under Section 302 of the Indian Penal Code. It is the present appellant who came to be convicted and sentenced. Hence this appeal.
5. We have heard learned Counsel for the appellant and learned A.P.P. in the matter. We have gone through the oral evidence of the witnesses recorded in this case as also the documents exhibited and proved. We have gone through the evidence of defence witnesses examined in this case and we have gone through the Impugned judgment.
6. It would be necessary to state here in this case that the conviction of the appellant by learned trial Judge has been recorded on the basis of two dying declarations, one at Exhibit 18, which is the F.I.R., recorded by Police Head Constable Sudam Karal (examined as P.W.5). This F.I.R. is later treated as dying declaration. Another dying declaration at Exhibit 20, is recorded by Executive Magistrate Ravindra Mutha (P.W.6), The deceased Halimabee was married to the younger brother of the present appellant’s husband. The marriage had taken place about 10-11 months prior to the date of the incident. It would be pertinent to state here that before learned trial Judge, there was no satisfactory evidence adduced in support of the charge that deceased Halimabee was ill-treated by her husband or; any of the relatives including the present appellant. It is for this reason that all the accused persons have been acquitted for the offence punishable under Section 498-A read with Section 34 of the Indian Penal Code.
7. Though in the F.I.R. which was recorded by Head Constable, who was attached to the Outpost of the Hospital where Halimabee was admitted after burn injuries, allegations were made only against the present appellant as responsible for setting her on fire, it is not known why all other accused persons came to be charge sheeted for the offence punishable under Section 302 of the Indian Penal Code. The evidence of the grandfather of the deceased and other relatives who have been examined in this case with regard to ill-treatment meted out to the deceased at the hands of the accused persons, is not convincing and it is for this reason that learned Judge did not convict any of the accused for the offence punishable under Section 498-A of the Indian Penal Code. The conviction of the present appellant, as stated earlier, has been recorded on the basis of these two dying declarations, one at Exhibit 18 which is F.I.R./ dying declaration recorded by Head Constable and the other at Exhibit 20 recorded by Executive Magistrate.
8. The incident in question has taken place on 3.4.1991 at 10.00 a.m. in the matrimonial home. The deceased suffered 94% burn injuries and she died in the hospital on account of the burn injuries. There is no dispute about this. Learned trial Judge has discussed the evidence of the medical officer, who certified that the declarant was fit to make the declaration and also the fact that the dying declaration has been duly established to have been recorded as per the say of the declarant. Learned trial Judge has also discussed that there was no reason for both of them to have recorded the dying declaration unless such declaration was made. The oral dying declarations made by deceased before her father-in-law and others were also taken into account for conviction of the present appellant.
9. It would be noted that proof of recording of dying declaration is one thing and evidentiary value and truthfulness of the dying declaration is another matter. Before a person could be convicted on the basis of dying declaration/(s), written or oral, it is not sufficient only to see that the dying declaration/(s) has/have been correctly recorded and they are recorded as per the say of the declarant. Due compliance with the procedure would lead one to conclude that the dying declaration is the true version of the declarant. This, however, is not end of the matter. The dying declaration, before it can form basis for conviction, it must be found to be inspiring confidence. On perusal of the two dying declarations (Exhibit 18 and Exhibit 20 in. this case) and juxta-positioning it with other circumstances on record, in this case we are of the view that the conviction on the basis of these dying declarations in the present case cannot be sustained.
10. The incident in question took place admittedly in the matrimonial home of the deceased and at 10.00 a.m. in the morning. On perusal of the dying declarations, it would be seen that at the relevant time, all the accused persons including the husband of the deceased were present. In the dying declaration at Exhibit 18, the declarant stated in one line that only her mother-in-law was present at home. In the next sentence, she stated that her husband and two brothers were also present. She further stated that accused No. 4 Riyazoddin and accused No. 2 Riasoddin, both of her brothers-in-law, were saying that she should be taken to her maternal home and saying this, they went and sat in the courtyard. She further stated that her elder brother-in-law namely Pasha came running and he extinguished fire on her person. She also stated that Pasha sustained injuries on both his palms. In the dying declaration which is recorded at Exhibit 20, she has specifically referred to the presence of her sisters-in-law and her husband.
11. As stated earlier by us, there is no reliable evidence about ill-treatment meted out to the deceased by her husband or other relatives. The allegations have been made only after the offence is registered on the basis of dying declaration at Exhibit 18 and these allegations are made only before police by her relatives. The trial Court has not accepted the evidence with regard to ill-treatment. There is no evidence with regard to culpability of other accused tried along with the present appellant for the murder of deceased Halimabee. The present appellant has been convicted on the basis of these two dying declarations i.e. at Exhibit 18 and Exhibit 20 and certain oral dying declarations. On perusal of these two dying declarations, we not only see inconsistencies between the two but these dying declarations do not inspire confidence. We do not see it natural also. The incident, as stated by us, has taken place in the matrimonial home and it has taken place at 10.00 a.m. Admittedly the husband of the deceased and other brothers of the husband including their wives and parents of her husband arc all residing in the same house. She states that she was folding clothes and suddenly the present appellant came and poured kerosene on her person. This is unnatural. It is difficult to accept that suddenly the appellant would come, pour kerosene 011 the person of the deceased and set her on fire while all the accused persons as also her husband were present in the house. In the dying declaration at Exhibit 18, the deceased states that her husband’s elder brother Pasha arrived and extinguished fire. She also states that his both hands were burnt. This has been also corroborated by the evidence of P.S.I. Ramesh Kantewar, investigating officer, who came to be examined as P.W.8. He admitted in cross-examination that hands of Pashamiya were burnt in the incident. It was also admitted by him that said Pashamiya had been sent for medical examination and treatment because of burn injuries he sustained on his hands. This Pashamiya has not been examined as prosecution witness, but later came to be examined as defence witness. In defence, D.W.I Pashamiya at Exhibit 42 stated that there was feast at the house of the accused and many persons had gathered. It was stated by him that the deceased sustained injuries while cooking and he deposed to have extinguished fire on the person of the deceased. He deposed to have sustained injuries to his hands. Finally he stated to have taken the deceased along with his relatives to the hospital. Now, presence of this witness has been indicated in one of the dying declarations at Exhibit 18 by the deceased declarant. The declarant has also stated in her dying declaration Exhibit 18 that the fire on her person was extinguished by this witness Pasha. We have already stated as to how the dying declarations of the, declarant do not inspire confidence. The statement of Pasha that there was function at the place of accused persons is corroborated by the evidence of grandfather of the deceased namely Haji Abdul Razak, examined as P.W.I. He admitted that there was Sandal at the Dargah of Khaja Kamaluddin on the day of the incident. He admitted also that there was shamiyana erected in front of the Dargah on the day of the incident, which lends credence to the case of the defence that there was some function at their place. Though this witness Haji Abdul Razak and Noorjahanbee (P.W.2). the mother of the deceased, stated about oral dying declaration made by the deceased in which the present appellant is stated to have been blamed, is again not. acceptable. The reasons for rejecting the written dying declarations at Exhibit 18 and Exhibit 20 apply to the oral dying declarations with more force.
12. To conclude, though dying declarations at Exhibit 18 and Exhibit 20 have been duly proved, one by the Head Constable and the other by Executive Magistrate, and true it is that there is endorsement of the medical officer that the declarant was medically fit to make the dying declarations, we do not find these two dying declarations trustworthy and inspiring confidence to form basis for conviction of the present appellant for the reasons discussed by us earlier.
13. In the result, the criminal appeal is allowed. The conviction of the appellant for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and the sentence awarded are hereby set aside. The bail bonds of the appellant are cancelled. Fine, if paid, be refunded to her.