APEAL-852-2019.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 852 OF 2019

WITH

INTERIM APPLICATION (ST) NO. 11514 OF 2026

Smt. Meenabai Lobaji Gaikwad

Age: 61 years, Occupation- nil

Residing at - Opposite Pink City,

Vinod Kalte Brick Kiln, Wakad,

Pune.

Presently Lodged at: Yerawada

Central Jail

.

.

Appellant

V/S.

State of Maharashtra

(through Hinjewadi Police Station)

.

.

Respondent

-------------------

Adv. Sachin Salunke for Appellant.

Dr. Dhanlakshi S. Krishnaiyyer, APP for Respondent-State.

--------------------

CORAM : MANISH PITALE &

SHREERAM V. SHIRSAT,

JJ.

RESERVED ON : 12

th

JUNE 2026

PRONOUNCED ON : 23

rd

JUNE 2026

JUDGMENT: (PER SHREERAM V. SHIRSAT, J.)

1. The present Appeal has been filed challenging the impugned

Judgment and Order dated 28.11.2016 passed by the Cou rt of

Sessions, Pune in Sessions Case No. 666/2013, whereby the Appellant

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has been convicted under Section 235(2) of the Code of Criminal

Procedure, 1973 (Cr.P.C.) for the offence punishable under Section

302 of the Indian Penal Code, 1860 (IPC) and has been sentenced to

undergo imprisonment for life and pay a fine of Rs. 10,000/- and in

default to undergo Rigorous Imprisonment for 6 months.

2. BRIEF FACTS OF THE PROSECUTIONS CASE

a. It is the case of the Prosecution that Meenabai

Gaikwad, the Appellant herein is the mother-in-law of the

deceased Savitra Vijay Gaikwad. Savitra was married to Vijay

Gaikwad (son of the Appellant) in June 2006. The Appellant

came to reside with them four months prior to the incident.

It is further the case of the prosecution that the Appellant

used to pick up quarrels with the deceased.

b. It is further the case that the Appellant had

mortgaged her gold ornaments with one jeweller (Marwadi)

and the Appellant often used to demand money from the

deceased for releasing her mortgaged ornaments. It is further

the case that since the deceased and her husband had no

money and they were indebted, they could not fulfill the

persistent demand. It is further the case that the deceased

would assure the accused/Appellant that whenever she had

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money, she would try to release the ornaments, however the

Appellant used to often ill-treat her on this count.

c. It is further the case that on 17.04.2013, when the

deceased was doing household work, the Appellant again

asked her for money to release her gold ornaments and also

threatened the deceased in case the amount was not given to

her to which the deceased tried to convince the Appellant that

she would release the ornaments which were mortgaged,

whenever she had the money to do so. However, it is the case

that the Appellant, in a state of fury, brought a can of

kerosene and poured it on the deceased and set her ablaze

and then left the house. It is further the case that the

neighbours then rushed to the spot of the incident and

telephoned the husband of the deceased. It is further the case

that the husband of the deceased came home immediately

and extinguished the fire by pouring water on her and took

the deceased to YCM hospital and from there she was

subsequently shifted to Sassoon hospital.

d. It is further the case of the prosecution that when the

deceased was admitted in the hospital, her statement came to

be recorded in which she has stated about the quarrel with

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the Appellant who then also poured kerosene on her and set

her ablaze.

e. It is further stated that her statement was then

treated as an F.I.R which came to be registered on 17.04.2013

under section 307 of the IPC. She then succumbed to burn

injuries on 21.04.2013. The offence was accordingly

registered under section 302 IPC.

f. After completing the investigation, the police filed a

charge sheet and the matter was committed to the Sessions

Court, Pune for trial. Charges came to be framed against the

accused under Section 302 IPC, to which the

accused/Appellant pleaded not guilty and claimed to be tried.

3. To bring home the guilt of the accused-Appellant, the

Prosecution examined 10 witnesses (PW1 to PW10) :

PW- 1 Sakharam Tukaram

Bokefode

Panch witness to spot

panchanama

PW-2 Ramesh Tulshiram Jagtap Maternal uncle of the

deceased.

PW-3 Dr. Aaditya Ravindra Kunte Doctor in whose presence the

dying declaration was

recorded.

PW 4 Ghisulal Bansilal Soni Jeweller with whom the

jewellery was mortgaged.

PW 5 Subhash Aba Jadhav API who recorded the Dying

Declaration.

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PW 6 Vinod Subhash Kalate Employer of the husband of

the deceased.

PW 7 Dr. Vijay Rathod Doctor who conducted post-

mortem.

PW 8 Nilesh Jagdale Investigating Officer

PW 9 Vijay Gaikwad Husband of the deceased

PW 10 P.I. Jagdale Investigating Officer

4. After hearing both sides and upon appreciation of the evidence

on record, the Court of Sessions, Pune vide Judgment and Order dated

28.11.2016, was pleased to convict the Appellant for the offence

punishable under Section 302 of the IPC and sentenced her to

undergo life imprisonment and to pay a fine of Rs. 10,000/-, in default

to suffer rigorous imprisonment for six months.

5. Aggrieved by the judgment and order of conviction passed by the

Ld. Sessions Judge, Pune in Sessions Case No. 666/13, dated

28.11.2016, the Appellant has approached this Hon’ble Court by way of

the present Appeal.

6. Heard Ld. Adv. Sachin Salunke for the Appellant and Dr.

Dhanlakshi S. Krishnaiyyer, APP for Respondent-state.

7. The Ld. Counsel for the Appellant submitted that the Appellant

has been falsely implicated and there is no cogent evidence to sustain

the conviction. He further submitted that the Dying Declaration

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cannot be believed as it has been recorded by the police officer and not

by the Special Executive Magistrate (SEM). He further submitted that

the Dying Declaration has not been recorded in a question-answer

format and therefore no credence can be placed in such a Dying

Declaration. The Ld. Counsel further submitted that the relations of

the deceased with the Appellant were cordial and the death had

occurred because of an explosion of stove and that the Appellant had

neither poured kerosene nor had lit the matchstick. He further

submitted that the Appellant is a lady aged about 68 years and she is

in custody for over 13 years and therefore some leniency be shown.

8.Per Contra the Ld. APP submitted that there is nothing to

disbelieve the witnesses who have deposed in this case. She further

submitted that the Dying Declaration is believable and therefore

conviction can be based on the same without looking for any

corroboration. She further submitted that the Dying Declaration is

corroborated by two witnesses- P.W. 2 and P.W. 6 and therefore there

is consistency throughout. The Ld. APP therefore submitted, that a

young lady aged 24 years has lost her life and therefore no leniency be

shown to the Appellant.

9. The Ld. Counsel for the Appellant has relied upon the following

judgment:

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Piraji S/O Madhav Kumbhargave v/s The State Of

Maharashtra

1

.

10. The Ld. APP has relied upon the following judgments:

Purshottam Chopra and Another v/s State (Govt. Of

Nct Delhi)

2

Laxman v/s State Of Maharashtra

3

Trimukh Maroti Kirkan v/s State Of Maharashtra

4

.



11. The entire case of the prosecution hinges on the Dying

Declaration recorded by P.W. 5 in the presence of P.W. 3 and also

made to P.W. 2, the maternal uncle of the deceased and P.W. 6, the

owner of the brick kiln. It will therefore be relevant to assess and

marshal the evidence of these witnesses in order to come to a

conclusion whether the Dying Declaration can be believed or it has to

be discarded.

12. Before adverting to the evidence that has come on record, it will

be advantageous to refer to the latest judgments of this Court as well

as of Hon’ble Apex Court on this issue.

1 BHC Cr.A.327-2023.

2 AIR OnLine 2020 SC 15.

3 (2002) 6 SCC 710.

4 (2006) 10 SCC 681.

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13. This Court in a recent judgment of Manoj Ramaji Chvare

v/s State of Maharashtra in Criminal Appeal No. 108 of

2020 had an occasion to deal with the issue of dying declaration and

this Court had referred to the judgment of the Hon’ble Supreme Court

in the case of Irfan @ Naka v/s The State of Uttar Pradesh in

Criminal Appeal Nos. 825-826 of 2022, wherein it was observed

as under:

“15. Though a dying declaration is entitled to great

weight, it is worthwhile to note that the accused has no

power of cross-examination. Such a power is essential

for eliciting the truth as an obligation of oath could be.

This is the reason the court also insists that the dying

declaration should be of such a nature as to inspire full

confidence of the court in its correctness. The court has to

be on guard that the statement of the deceased was not

as a result of either tutoring, or prompting or a product

of imagination. The court must be further satisfied that

the deceased was in a fit state of mind after a clear

opportunity to observe and identify the assailant. Once

the court is satisfied that the declaration was true and

voluntary, undoubtedly, it can base its conviction

without any further corroboration. It cannot be laid

down as an absolute rule of law that the dying

declaration cannot form the sole basis of conviction

unless it is corroborated. The rule requiring

corroboration is merely a rule of prudence.

… …...

62. There is no hard and fast rule for determining when

a dying declaration should be accepted; the duty of the

Court is to decide this question in the facts and

surrounding circumstances of the case and be fully

convinced of the truthfulness of the same. Certain

factors below reproduced can be considered to

determine the same, however, they will only affect the

weight of the dying declaration and not its

admissibility: -

(i) Whetherr the dying declaration was a product of

prompting, tutoring or leading at the instance of police

or any interested party?

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(v) Whether the statement was not recorded properly?

(vi) Whether, the dying declarant had opportunity to

clearly observe the incident?

(vii) Whether, the dying declaration has been

consistent throughout?

(viii) Whether, the dying declaration in itself is a

manifestation /fiction of the dying person’s

imagination of what he thinks transpired?

(ix) Whether, the dying declaration was itself

voluntary?

(x) In case of multiple dying declarations, whether, the

first one inspires truth and consistent with the other

dying declaration?

(xi) Whether, as per the injuries, it would have been

impossible for the deceased to make a dying

declaration? the person making the statement was in

expectation of death?

(ii) Whether the dying declaration was made at the

earliest opportunity? “Rule of First Opportunity”

(iii) Whether there is any reasonable suspicion to

believe the dying declaration was put in the mouth of

the dying person?

(iv) Whether the dying declaration was a product of

prompting, tutoring or leading at the instance of

police or any interested party?

(v) Whether the statement was not recorded properly?

(vi) Whether, the dying declarant had opportunity to

clearly observe the incident?

(vii) Whether, the dying declaration has been

consistent throughout?

(viii) Whether, the dying declaration in itself is a

manifestation /fiction of the dying person’s

imagination of what he thinks transpired?

(ix) Whether, the dying declaration was itself

voluntary?

(x) In case of multiple dying declarations, whether, the

first one inspires truth and consistent with the other

dying declaration?

(xi) Whether, as per the injuries, it would have been

impossible for the deceased to make a dying

declaration?”

14. This Court had also considered the judgment of Navin

Bhimrao Bansode v/s The State of Maharashtra in

Criminal Appeal No. 613 of 2014 wherein it has been

observed as under:

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“19. So far as the dying declaration is concerned the

law is well settled. The principle on which the dying

declaration is admitted in evidence is based on the legal

maxim “Nemo Moriturus Praesumitur Mentire” i.e. the

man will not meet his maker with a lie in his mouth. It is

based on the principle that in the face of death, all the

worldly aspirations of a man do not exist. It is unlikely

that a person who is on death bed would falsely

implicate an innocent. In the case of “Paniben Vs.

State of Gujarat; AIR 1992 SUPREME COURT

1817”, the principles governing the dying declaration

are enumerated as under:

“It cannot be laid down as an absolute rule of law

that the dying declaration cannot form the sole basis of

conviction unless it is corroborated. The rule requiring-

corroboration is merely a rule of prudence. The Court

has laid down in several judgments the principles

governing dying declaration, which could be summed

up as under:

(i) There is neither rule of law nor of prudence that

dying declaration cannot be acted upon without

corroboration. (Mannu Raja v. State of U.P. (1976) 2

SCR 764) (AIR 1976 SC 2199).

(ii) If the Court is satisfied that the dying declaration

is true and voluntary it can base conviction on it,

without corroboration. (State of U.P. v. Ram Sagar

Yadav, AIR 1985 SC 416; Ramavati Devi v. State of

Bihar, AIR 1983 SC 164).

(iii) The Court has to scrutinise the dying declaration

carefully and must ensure that the declaration is not

the result of tutoring, prompting or imagination. The

deceased had opportunity to observe and identify the

assailants and was in a fit state to make the

declaration. (Ram Chandra Reddy v. Public

Prosecutor, AIR 1976 SC 1994).

(iv) Where dying declaration is suspicious it should

not be acted upon without corroborative evidence.

(Rasheed Beg v. State of Madhya Pradesh, (1974) 4

SCC 264 : (AIR 1974 SC 332).

(v) Where the deceased was unconscious and could

never make any dying declaration the evidence with

regard to it is to be rejected. (Kake Singh v. State of

M. P., AIR 1982 SC 1021).

(vi) A dying declaration which sufers from infirmity

cannot form the basis of conviction. (Ram Manorath

v. State of U.P., 1981 SCC (Crl.) 581).

..... .......

“21. The law on the dying declaration is that if the Court

is satisfied that the dying declaration is true and made

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voluntarily by the deceased, conviction can be based solely

on it, without any further corroboration. It is neither a

rule of law nor of prudence that the dying declaration

cannot be relied upon without corroboration. When the

dying declaration is suspicious, it should not be relied

upon without having corroborative evidence. Court has to

scrutinise the dying declaration carefully and must ensure

that the dying declaration is not the result of tutoring,

prompting or a product of imagination. The deceased must

be in a fit state of mind to make the declaration and must

identify the assailants. Merely because a dying declaration

does not contain the details of occurrence, it cannot be

rejected and in case there is merely a brief statement, it is

more reliable for the reason that the shortness of the

statement is itself guarantee of its veracity. When the

dying declaration suffers from some infirmity, it cannot

alone form the basis of conviction.

.... ....

24. ......The Hon’ble Supreme Court in the case of “Raju

Devade Vs. State of Maharashtra – AIR 2016 AIR (SC)

3209 has observed as under :

“27. This Court had clearly laid down that the

each dying declaration has to be considered

independently on its own merit so as to appreciate its

evidentiary value and one cannot be rejected because

of the contents of the other. In cases where there is

more than one dying declaration, it is the duty of the

court to consider the each one of them in its correct

perspective and satisfy itself that which one of them

refects the true state of affairs.”.

15. On the basis of the principles laid down by the Hon’ble Apex

Court and before analysing the evidence threadbare, it will be

advantageous to narrate the depositions of the witnesses with respect

to the Dying Declaration. In the array of witnesses examined by the

prosecution, P.W. 2, P.W. 3, P.W. 5 and P.W. 6 would be the relevant

witnesses who would throw light on the Dying Declaration.

16. P.W. 2, is the uncle of the deceased who has deposed that the

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deceased was residing with her husband and parents-in-law. He has

deposed that on 17.04.2013, he received a phone call from Ram

Dupargande and he was informed that Savitra has sustained burn

injuries and was admitted to the Sassoon General Hospital and that he

should immediately come to Sassoon General Hospital. He has further

deposed that he went to Sassoon Hospital where he saw burn injuries

on the person of Savitra. He has further deposed that he asked Savitra

as to how she sustained injuries, to which she said that “her mother-

in-law quarrelled with her by demanding money to reduce the

mortgage in respect of gold ornaments. Her mother-in-law often

used to demand money and used to pick quarrels with her. The

deceased told her mother-in-law that she would pay the money

whenever she had money with her. The deceased told him that the

mother-in-law of Savitra killed her by pouring kerosene on her

person and lighting a matchstick.”

17. This witness was thoroughly cross-examined and the cross-

examination was on the point that the Appellant was not residing with

Savitra, which has been denied by this witness. This witness has

further answered in the cross-examination that the Appellant was

residing with her until the incident occurred. In the cross-

examination, it was tried to be suggested that in the hospital the

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relatives also spoke to the deceased, however, he has denied the

suggestion that the deceased was tutored to give the statement that

her mother-in-law poured kerosene on her and set her ablaze. The

suggestion given to this witness that due to the explosion of the stove

while cooking food, the deceased came in contact with fire and

therefore she sustained burn injuries, was also denied by this witness.

18. P.W.3, Aditya Ravindra Kunte, the surgeon attached to the

Sassoon General Hospital, Pune has deposed that Savitra Vijay

Gaikwad was admitted in Sassoon General Hospital for burn injuries

and he had treated this patient. He has deposed that the said patient

sustained 77% burn injuries. He has further deposed that he informed

the RMO that the statement of the patient was required to be taken

and accordingly an entry was made in the medical papers. He has

further deposed that on 17. 04. 2013 at about 10 p.m., one police man

had come to the hospital for recording the statement of this patient

and therefore he examined the patient and observed that the patient

was conscious and well-oriented to time, place and person. He has

further deposed that he gave his endorsement along with his signature

on the paper and thereafter the police started recording the statement

of the said patient in his presence. He has further deposed that the

police completed the recording of the statement in his presence and

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obtained the thumb mark of the patient in his presence. He also stated

that he again examined the patient and observed that she was

conscious, well-oriented to time, place and person throughout. He has

further deposed that the patient was mentally fit to make a statement.

In the cross-examination, he has stated that the history given by the

patient was of accidental burns on admission. In his cross-

examination, it is clarified that it is true that in the delirium stage, the

patient goes into an imaginary state of mind and in such cases, the

patient talks irrelevant. He has also stated that on the statement there

is no endorsement that the patient is mentally fit to make a statement.

He has further deposed that at the foot of the statement there is no

endorsement and signature put by him.

19.P.W. 5 Subhash Aba Jadhav, API who recorded the Dying

Declaration, has deposed that on 17

th

April 2013, he received

information that Savitra Gaikwad has sustained burn injuries and was

admitted to Sassoon General Hospital and he went to Sassoon General

Hospital on the same day to Ward No 25. He has further deposed that

he saw the patient Savitra Gaikwad in Ward No. 25, Bed No. 10. He

has deposed that he met the concerned doctor and disclosed his

intention to record the statement of Savitra Gaikwad. He has deposed

that he asked the doctor whether the said lady was in a conscious state

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of mind to make a statement. The doctor examined her and opined

that she was in a conscious state of mind to make a statement. He has

further deposed that he obtained the endorsement of the concerned

doctor on the statement paper at the beginning of recording of the

statement. He has further deposed that thereafter, he started

recording the statement of the said lady and asked her name and other

things. He has further deposed as follows: “The victim lady stated that

her mother-in-law accused Meenabai Gaikwad said to her that

ornaments were mortgaged with one marwadi and Meenabai was

constantly demanding money from her to de-mortgage ornaments.

Victim lady told Meenabai that she had no money that time and

whenever she had money, they would de-mortgage the ornaments,

on this count, the accused Meenabai often used to ill-treat her by

insulting her. The victim girl further stated that on 17.04.2013, when

she was in the house, accused Meenabai was demanding money from

her since Meena wanted to de-mortgage the gold ornamen ts

immediately, and in case she did not give money, Meena, who did

some bad act. The victim lady said that when she had money she

would give it to Meenabai to release said ornaments, however,

Meena bai got angry, Meenabai brought can of kerosene, she poured

the kerosene on the person of Savitra and set her ablaze. Savitra then

shouted, however, Meenabai left home. The neighbours gathered on

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the spot. Her husband was called. Her husband extinguished fire by

pouring water on her person.” He has further deposed that he

recorded the statement of victim Savitra as per her say which was read

over to her and she admitted it to be true and correct and then he

obtained left-hand thumb impression and he also signed the

statement. He has further deposed that the doctor was present

throughout while recording the statement and no other person,

including the relatives of the patient were present. He has also

deposed that after completing the statement, he again requested the

doctor to examine the patient and the doctor after examining the

patient, opined that the victim lady was in a conscious state of mind to

make a statement. He further deposed that he obtained endorsement

as well as signature of the doctor and the doctor also mentioned the

time and date of giving endorsement at the beginning and at the end

of the statement. The said statement of the deceased was marked as

Exh. 29. The said witness was cross-examined and the witness was

questioned that the statement of the lady Savitra was not recorded in

question and answer format to which he agreed. He w as also

questioned whether he had personally mentioned the exact time when

he started recording the statement and the time when he completed

the statement, to which he replied that he had not personally

mentioned it. He was also asked as to whether an independent

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certificate showing the mental condition of the patient to make a

statement was obtained by him, to which he replied that he did not

obtain. He was also cross-examined on the point as to whether he had

mentioned in the statement that the contents of the statement were

read over to the victim lady to which he replied that he had not

mentioned so in the statement.

20. P.W. 6 Vinod Subhash Kalate, the employer of the husband of

the deceased and owner of the brick kiln has deposed that on the day

of incident at 11:15 a.m., he received a phone call from Vijay Gaikwad

that his wife had sustained burn injuries. Therefore, he himself

immediately went to the brick kiln and shifted Vijay’s wife to Sassoon

General Hospital. He has further deposed that on the way, he asked

the wife of Vijay Gaikwad about the incident and “she told that some

gold was mortgaged and it was to be released. The wife of Vijay

Gaikwad told Meena that she would get money and they would

release the gold. Accused Meena then poured kerosene on her person

and set her ablaze and therefore, she sustained burn injuries.” In the

cross-examination, nothing much could be elicited and his testimony

has virtually remained unchallenged.

21. Analysis of the evidence of P.W. 2, P.W. 3, P.W. 5 and P.W. 6

would show that there is absolute consistency in the Dying Declaration

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and the statements made by the victim to the said witnesses. P.W. 2

who is the maternal uncle of the deceased, in no uncertain terms has

narrated what was told to him by the deceased about the Appellant

pouring kerosene on her person and igniting matchstick. The cross-

examination by the defence counsel did not in any manner cause a

dent to the deposition of this witness. P.W. 3 in whose presence the

Dying Declaration was recorded by P.W. 5 has also vividly described

the sequence of events about examining the deceased. He has deposed

that before recording the statement it was noted by him that the

patient was conscious, well-oriented to time, place and person. Even

after the statement was concluded he had again examined the patient

and found her to be conscious, well-oriented to time, place and person

throughout and has again made an endorsement along w ith his

signature. This witness has categorically deposed that the deceased

was mentally fit to make a statement. In the cross-examination,

although it is stated that on the statement there is no endorsement

that the ‘patient is mentally fit to make a statement’, on perusal of

Exh.16 we find that there is proper endorsement with regard to the

patient being conscious, well-oriented etc. though not in the exact

words that ‘patient is mentally fit to make a statement’. This would

hardly make any difference when the meaning of both the

endorsements is the same. Further if we analyse the Dying Declaration

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made to P.W. 5, it can be seen that the said witness has taken utmost

precaution before recording the statement of the deceased like asking

the doctor whether the said lady was in a conscious state of mind to

make a statement etc and after the doctor examined her and opined

that she was in conscious state of mind to make a statement and also

after ensuring that there was an endorsement of the concerned doctor

on the statement, this witness proceeded to record the statement of

the deceased. This witness has also ensured that the doctor was

present throughout while recording the statement and no other

person, including the relatives of the patient were present, to be sure

that there was no tutoring of the deceased. This witness had also

requested the doctor to examine the patient after completing the

statement, to be certain that all throughout the deceased was in a fit

state of mind and conscious to give the statement which was recorded

by him. We therefore find the Dying Declaration to be free from any

tutoring and we are inclined to accept the said Dying Declaration to be

truthful. Further, corroboration to this Dying Declaration comes in the

statement of P.W. 2 and P.W. 6. These witnesses hav e also

categorically deposed as to what was narrated by the deceased, which

has been referred to hereinabove. Thus, even what was narrated by the

deceased to these witnesses was in the nature of dying declaration,

which corroborates the oral dying declaration made by the deceased to

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P.W. 5. To further lend corroboration, even the doctor (P.W. 3) has

stated and confirmed what was told to him which corroborates the

deposition of P.W. 5. It is settled law that a Court is entitled to convict

on the sole basis of a dying declaration, if it is such that in the

circumstances of the case, it can be regarded as truthful and that a

truthful and reliable dying declaration may form the sole basis of

conviction even without corroboration when the Court is satisfied

about its truthfulness and reliability.

22. The Apex Court in the case of Irfan @ Naka (supra) has laid

down certain factors which can be considered to determine when a

dying declaration should be accepted. If we see the depositions of the

prosecution witnesses, it would show that they are absolutely

consistent on the point of the dying declaration made by the deceased

to these witnesses. In fact, all the guiding parameters as stated in the

judgment of Irfan @ Naka (supra) have been complied with. For

instance, in the judgment, it is observed that a dying declaration

should be made in expectation of death and at the first available

opportunity, which from the deposition of the witnesses appears to be

done. This Court does not find from the evidence on record that the

Dying Declaration is the outcome of any tutoring or the product of any

prompting or leading at the instance of police or any interested party.

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Although, in the cross-examination of P.W. 2, the uncle of the

deceased, it was tried to be brought on record that in the hospital, her

relatives were also talking to her, however, it is not clear whether the

relatives spoke to her before recording the statement or after

recording the statement by the API and therefore, no inference can be

drawn that the deceased was tutored in the hospital to give the

statement. In fact, the suggestion has also been denied by P.W. 2 that

the deceased was tutored to give the statement. Further, all

precautions were taken by P.W. 3 and P.W. 5 whilst recording the

statement, which lends further corroboration that the deceased was in

a fit state of mind at the time when she made the statement. This

Court finds the Dying Declaration to be consistent in the depositions

of P.W. 2, P.W. 5 and P.W. 6 and does not find the Dying Declaration

to be manifestation or fiction of the deceased's imagination.

Considering the nature of injuries and the percentage of burns

suffered by the deceased together with the fact that P.W. 3 had given

an endorsement that the patient was in a fit state to give her

statement, there is no reason for this court to disbelieve the Dying

Declaration of the deceased. This Court is therefore of the opinion that

the Dying Declaration inspires confidence and has been made

voluntarily.

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23.In the case of Uka Ram v/s The State of Rajasthan (AIR

2001 SC 1814), it was held that:

“para 6. Once the court is satisfied that the dying declaration was true,

voluntary and not influenced by any extraneous consideration, it can

base its conviction without any further corroboration as a rule

requiring corroboration is not a rule of law but only a rule of

prudence.”

24. Further the prosecution has proved the cause of death by

examining P.W. 7- Dr. Vijay Chandrakant Rathod. P.W. 7, who

conducted the post-mortem, has deposed that on 22 .04. 2013, the

dead body of Savitra Vijay Gaikwad was brought to Sassoon General

Hospital by Hinjawadi Police along with inquest panchanama and he

conducted post-mortem between 2:20 to 3:20 hours. He has deposed

that the female was aged about 24 years and that he observed

superficial deep burn injuries reddish, whitish and blackish present

over the body. He has deposed that the burn injuries were found on

neck, face, head, chest, lungs and abdomen and also observed an

incised wound of venesection stitched with single stitch over both

right and left medial maleolus and that all injuries were ante-mortem.

He deposed that according to him, the cause of death was “due to

complications following burns” and accordingly, he issued post-

mortem report under his signature and in his handwriting. He

identified the post-mortem report when it was shown to him. He

deposed that the said injuries were sufficient to cause death in the

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ordinary course of nature. In the cross-examination, this witness was

confronted with the book on Medical Jurisprudence and Toxicology

(Page No. 336) and the witness agreed with the proposition that in

case of patients with kerosene burns, there is a possibility of carbon

particles in the stomach. He has also agreed with the proposition that

the burns caused by kerosene oil are usually very severe and are

known from its characteristic odour and sooty blackening of the parts.

However, nothing much was brought on record in the cross

examination or was any doubt created that the death could not have

been caused because of the burn injuries. From the evidence brought

on record, we are inclined to hold that the deceased died due to burn

injuries, which were caused by the Appellant by pouring kerosene and

lighting of matchstick.

25.The prosecution in order to establish that the Appellant had

mortgaged the gold ornaments with the jeweller, examined P.W. 4

Ghisulal Soni. P.W. 4, owner of Jewellery shop, deposed that about 2-

3 years back one Meena Gaikwad had come to his shop and brought

gold bids weighing 1.5 gms for the purpose of mortgage. He has

further deposed that he took those articles under mortgage and gave

Rs. 1,500/- to Meena Gaikwad in lieu of mortgage. He further deposed

that after some days, the police brought Meena Gaikwad to his shop

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and at that time, P.W. 4 told the police that said the Meena had

mortgaged gold bids with him. In the cross-examination, P.W. 4 could

not produce any receipt showing the mortgage of gold bids. He was

also not in a position to produce any receipt to show that he had paid

Rs. 1,500/- to the Appellant in lieu of mortgage.

26.If we analyze the evidence of P.W. 4, although it is true that

apart from the oral testimony of this witness that the Appellant had

mortgaged the gold bids and he had advanced Rs. 1,500/- to the

Appellant in lieu of mortgage, there is no documentary proof to

substantiate this aspect and therefore to that extent this witnesses

cannot be believed. Even if we discount the evidence of this witness,

there is sufficient material otherwise that has been brought on record

by way of dying declaration which inspires confidence and therefore,

even if this witness is not believed, for want of documentary evidence,

there is other satisfactory material, which proves the case of the

prosecution.

27. The Ld. Counsel for the Appellant submitted that prosecution

has given a different version of the case by falsely implicating the

Appellant whereas according to the Ld. Counsel for the Appellant, the

burn injuries were caused due to the explosion of the stove. To test

this submission, it will be necessary to see the evidence of P.W. 1 and

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the spot panchnama exhibited as Exh.16. According to P.W. 1, the

panch witness, on 17.04.2013, he went to the spot of incident on being

called by the police, where he saw one plastic can of kerosene,

matchbox and matchstick and there were some stains of kerosene on

the ground which were taken charge of by the police u nder

panchnama. Further the panchanama at Exh. 16 mentions a gas

furnace (shegdi) in the house which was kept on the wooden table. It is

very significant to note that in the entire spot panchnama, there is no

mention of any stove to show that there was a possibility of explosion

of the stove or there was any stove which had burst/exploded or any

remnants of the exploded stove were found. If it was the case of the

Appellant that the deceased had sustained burn injuries due to

explosion of the stove, then there is no material brought on record

even by preponderance of probability to that effect for the court to

infer any possibility other than the one proved by the prosecution.

Further, it has come on record that initially the history was given to

the doctor about accidental burns and accidental death was recorded.

However, there is nothing brought on record as to who had given the

history. If we analyse the evidence of all the witnesses, P.W. 9, the

husband had taken the deceased to the hospital and therefore there is

every possibility that P.W. 9 could have given the history while

admitting the deceased as he was the one who took the deceased to the

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hospital. The possibility of P.W. 9 giving the history of accidental

burns is fortified if his evidence is perused, wherein he states in his

examination-in-chief that the deceased sustained burn injuries due to

explosion of stove. P.W. 9 was declared hostile, however the portions

marked ‘A’ and ‘B’ have been proved through the I.O. and P.W. 10.

P.W. 3 in his cross-examination has stated that the history given by

the patient was of accidental burns, on admission, however in the

entire records and proceedings we did not find any such medical paper

where such endorsement was made. In any event, the prosecution has

established with the help of cogent evidence that the Dying

Declaration was recorded by police in the presence of a doctor, and as

per his say the deceased had clearly indicted the Appellant. We have

already held that there is nothing to disbelieve the Dying Declaration

and therefore the argument of the Ld. Counsel that the death was

caused due to explosion of the stove or accidentally, deserves to be

rejected.

28.The Ld. Counsel for the Appellant also raised an argument that

the Dying Declaration was not recorded in the presence of the

Magistrate and therefore it loses its significance as it has been

recorded by the police officer. The prosecution has rightly relied upon

the judgment in the case of Purshottam Chopra (supra) wherein

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the court was pleased to observe that:

“Para 21. For what has been noticed herein-above, some of the

principles relating to recording of dying declaration and its

admissibility and reliability could be usefully summed up as

under:

i) A dying declaration could be the sole basis of conviction

even without corroboration, if it inspires confidence of the

Court.

ii) The Court should be satisfied that the declarant was in a

fit state of mind at the time of making the statement: and

that it was a voluntary statement, which was not the result

of tutoring, prompting or imagination.

iii) Where a dying declaration is suspicious or is suffering

from any infirmity such as want of fit state of mind of the

declarant or of like nature, it should not be acted upon

without corroborative evidence.

iv) When the eye-witnesses affirm that the deceased was not

in a fit and conscious state to make the statement, the

medical opinion cannot prevail,

v) The law does not provide as to who could record dying

declaration nor there is any prescribed format or procedure

for the same but the person recording dying declaration

must be satisfied that the maker is in a fit state of mind and

is capable of making the statement.

vi) Although presence of a Magistrate is not

absolutely necessary for recording of a dying

declaration but to ensure authenticity and

credibility, it is expected that a Magistrate be

requested to record such dying declaration and/or

attestation be obtained from other persons present

at the time of recording the dying declaration.

vii) As regards a burns case, the percentage and degree of

burns would not, by itself be decisive of the credibility of

dying declaration; and the decisive factor would be the

quality of evidence about the fit and conscious state of the

declarant to make the statement.

viii) If after careful scrutiny, the Court finds the statement

placed as dying declara-tion to be voluntary and also finds it

coherent and consistent, there is no legal impediment in

recording conviction on its basis even without

corroboration.”

29. The evidence of P.W. 9 would show that the prosecution did

make attempts on the next day to call the SEM as well as the RMO of

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the hospital however they refused. Therefore, as observed by the Apex

Court that although presence of a Magistrate is not absolutely

necessary for recording of a dying declaration but to ensure

authenticity and credibility, it is expected that a Magistrate be

requested to record such dying declaration and/or attestation be

obtained from other persons present at the time of recording the dying

declaration, we are of the opinion that in the facts of the present case,

just because the Dying Declaration is recorded by the API, it will not

diminish its credibility which otherwise we find to be truthful.

30. It is argued by the Ld. Counsel for the Appellant that the Dying

Declaration recorded by the API, P.W. 5 deserves to be rejected as it

was not in a question- answer format. We are of the opinion that a

dying declaration cannot be rejected just because it is not in question-

answer format. A useful reference can be made to the judgement

passed by the Hon’ble Apex Court in Ram Bihari Yadav v/s The

State of Bihar and Others

5

wherein it has been observed as under:

“9.….This Court did not lay down, in any of the

aforementioned cases, that unless the dying declaration is in

question-answer form, it could not be accepted. Having

regard to the sanctity attached to a dying declaration as it

comes from the mouth of a dying person though, unlike the

principle of English law he need not be under apprehension of

death, it should be in the actual words of the maker of the

declaration. Generally, the dying declaration ought to be

recorded in the form of questions and answers but if a dying

declaration is not elaborate but consists of only a few

5 (1998) 4 SCC 517.

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sentences and is in the actual words of the maker the mere

fact that it is not in question-answer form cannot be a ground

against its acceptability or reliability. The mental condition of

the maker of the declaration, alertness of mind, memory and

understanding of what he is saying, are matters which can be

observed by any person…..”

Therefore, the mere fact that the Dying Declaration was not

recorded in a question-answer format, does not vitiate its admissibility

and cannot be deemed to negate or diminish its evidentiary value.

31. The Judgment relied upon by the Ld. Counsel for the Appellant

in the case of Piraji S/O Madhav Kumbhargave v/s The State

Of Maharashtra BHC Criminal Appeal No. 327 of 2023 can

be distinguished on the facts of the case. The Hon’ble High Court in

the above stated case, had come to a conclusion that it was not safe to

rely upon the Dying Declaration due to variance in two dying

declarations, non-production of material witness and non-production

of crucial medical evidence and hence the conviction was not

sustained. However, in the instant case, the dying declaration can be

said to be believable, free from any tutoring. The testimony of the

crucial prosecution witnesses on the point of dying declaration, the

Dying Declaration recorded by P.W. 5, the oral testimony of the

Medical Officer along with the endorsement and the Oral Dying

Declarations made to P.W. 2 and P.W. 4 lead us to believe the case of

the prosecution.

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32. Taking into consideration the overall conspectus of the matter

we are of the opinion that the Ld. Trial Court has rightly convicted the

Appellant and we hold the conviction to be proper.

33. Accordingly the Appeal stands dismissed.

34. In view of above, Interim application is also disposed of.

(SHREERAM V. SHIRSAT, J.) (MANISH PITALE, J.)

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