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Bombay High Court

GANESH SHANKAR PARASKARversusSTATE OF MAHARASHTRA AND ANR.

Decided
Disposal
Dismissed

Holding

The conviction under Sec.302 IPC is upheld, while convictions under Sec.307, Sec.323 and Sec.506 IPC are set aside.

Summary

The appellant, Ganesh Shankar Paraskar, was convicted by the Sessions Court for murder (Sec.302 IPC) and also for offences under Sec.307, Sec.323 and Sec.506 IPC, based primarily on two written dying declarations of his wife and corroborative oral statements of two neighbours. He appealed, contending that the first dying declaration recorded on 12 September 2015 was suppressed and that the later declarations were unreliable because they were taken after relatives tutored the victim. The High Court examined the admissibility and reliability of the dying declarations, the endorsements of the medical officer, and the consistency of oral testimonies, finding the later declarations credible and the prosecution's case against the appellant for murder proved beyond reasonable doubt. However, the Court held that the evidence did not sufficiently establish the offences of attempt to murder, voluntarily causing hurt, and criminal intimidation, and therefore set aside those convictions. The appeal was partly allowed: the conviction under Sec.302 IPC was upheld, while convictions under Sec.307, Sec.323 and Sec.506 IPC were vacated, and the appellant was granted set‑off under Sec.428 CrPC.

Issues considered

  • The admissibility and reliability of the dying declarations recorded on 12 September 2015 and 13 September 2015
  • Whether the prosecution proved the offences under Sec.307, Sec.323 and Sec.506 IPC beyond reasonable doubt
  • Whether the conviction under Sec.302 IPC is sustainable on the basis of the evidence
  • The applicability of Section 106 of the Evidence Act regarding the burden of explanation on the accused

Legislation cited

Subjects

  • murder
  • attempt to murder
  • voluntarily causing hurt
  • criminal intimidation
  • dying declaration
  • evidence reliability
  • appeal
  • conviction set aside

Judgment

                                                 1 of 28                901-apeal-1075-24 (J).odt
                     Gokhale


                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CRIMINAL APPELLATE JURISDICTION

                                    CRIMINAL APPEAL NO. 1075 OF 2024

                     Ganesh Shankar Paraskar                              ..Appellant
                          Versus
                     The State of Maharashtra & Anr.                      ..Respondents

                                                __________
                     Mr. Shailesh Kharat a/w. Shreyash K. Mone and Onkar Chaudhari
                     for Appellant.
                     Smt. M. M. Deshmukh, APP for State/Respondent.
                                                __________

                                        CORAM : SARANG V. KOTWAL &
                                                RANJITSINHA RAJA BHONSALE, JJ.

                                        DATE    : 10 SEPTEMBER 2026

                     JUDGMENT : (PER SARANG V. KOTWAL, J.)

                     1.           The Appellant has challenged the Judgment and order

                     dated 26.08.2022 passed by the learned Additional Sessions

                     Judge, Pune, in Sessions Case No.33 of 2016. The Appellant was

                     convicted and sentenced as follows:


                                   i)   He was convicted for commission of the offence
                                        punishable U/s.302 of the IPC and was sentenced
                                        to suffer imprisonment for life and to pay a fine
                                        of Rs.10000/-.


        Digitally
        signed by
        VINOD
VINOD   BHASKAR
BHASKAR GOKHALE
GOKHALE Date:
        2026.09.22
        16:36:15
        +0530
                           2 of 28                 901-apeal-1075-24 (J).odt


            ii) He was also convicted for commission of the
                 offence punishable U/s.307 of the IPC and was
                 sentened to suffer R.I. for ten years and to pay a
                 fine of Rs.5000/- and in default to suffer S.I. for
                 six months.

            iii) He was further convicted for commission of the
                 offence punishable U/s.323 of the IPC and was
                 sentenced to suffer R.I. for one year.

            iv) He was further convicted for commission of the
                 offence punishable U/s.506 of the IPC and was
                 sentenced to suffer S.I. for two years.

           All the sentences were directed to run concurrently. He

was acquitted from the charges U/s.498A and 504 of the IPC.


2.         Heard Mr. Shailesh Kharat, learned counsel for the

Appellant and Smt. M. M. Deshmukh, learned APP for the State.


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


           The Appellant was a labourer. He and his wife Manisha

were residing together in a small room. In the evening of

11.09.2015, the Appellant, the deceased and two friends of the

Appellant had gone to Jejuri. There was a quarrel between the
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Appellant and the deceased. When they returned to their room,

the deceased had not cooked food for him. She went to sleep. In

the morning at about 4:00a.m. the Appellant poured kerosene on

her person and set her on fire by lighting a matchstick. His friends

who were in the adjacent rooms saw the smoke coming out of the

room. They raised shouts. They rushed there. They saw that the

deceased Manisha-wife of the Appellant had caught fire. They took

her to a water tap. She had suffered severe burn injuries. Both the

friends took her to Saswad PHC and then to Sassoon Hospital,

Pune. Her statement was recorded by the police officer and then

by a Nayab Tahsildar on 13.09.2015. The Appellant’s wife Manisha

succumbed to her burn injuries on 14.09.2015. Based on the

statements of the deceased recorded by the police before her

death, C.R.No.226 of 2015 was registered at Saswad police station.

The Appellant was arrested, the investigation was conducted,

various panchanamas were conducted, the dead body was sent for

postmortem examination, the statements of various witnesses were

recorded and at the end of the investigation, the charge-sheet was

filed. The case was committed to the Court of Session.
                             4 of 28             901-apeal-1075-24 (J).odt


4.          During the trial, the prosecution examined nine

witnesses, including the police officers, the Special Executive

Magistrate who had recorded the statements of the deceased

which were in the nature of the dying declarations, two friends of

the Appellant who had reached the spot, the Medical Officer and

the Investigating Officer.


5.          The Appellant had taken the defence of denial. He gave

his written statement in his examination U/s.313 of the Cr.P.C. In

his statement, he contended that on 11.09.2015, he, his wife and

PW-8 Shivaji Nagulkar had gone to Jejuri. The trip was peaceful.

When they returned home, his wife did not cook meal. Both of

them slept without eating food. At about 4:00a.m. he started going

to work. His wife was making tea on the stove. There was bursting

of the stove. Her clothes caught fire. He immediately opened the

door and made her sit under a water tap. After extinguishing the

fire, she was immediately taken by him to Saswad PHC and then to

Sassoon Hospital. On the way, he informed this incident to her

parents. They came to the hospital. One person was accompanying

them. He had threatened the Appellant. Before her relatives came,
                           5 of 28                901-apeal-1075-24 (J).odt


the deceased had given her first statement that she had caught fire

because of the bursting of the stove. The said statement was

recorded in front of the Appellant. But thereafter she was tutored

to give a false statement. Hence, he was falsely implicated. He also

criticized the evidence of PW-7 Amol and PW-8 Shivaji, in his

statement.


6.           The learned trial Judge relied on the written dying

declaration, the endorsement given by the Doctor and the evidence

of PW-7 and PW-8. The learned Judge did not believe the first

statement given by the deceased on 12.09.2015. Based on these

reasons, he convicted and sentenced the Appellant, as mentioned

earlier.


7.           PW-2 Rajendra Waydande is an important witness in

this case. He was a resident Nayab Tahsildar, Pune city. He deposed

that on 13.09.2015, the PSI of Saswad police station issued a letter

to their office requesting for recording dying declaration of

Manisha Paraskar. PW-2 went to Sassoon Hospital, Ward No.25 for

recording the statement. He met the doctor, who took him to Ward
                         6 of 28               901-apeal-1075-24 (J).odt


No.25. PW-2 enquired with the doctor about the patient’s

condition for recording the statement. The Doctor gave his

endorsement in writing that the patient was conscious, oriented

and could give a statement. PW-2 then enquired with the injured

lady. She narrated her name and address. He asked her as to how

the incident had taken place. She told him that her husband had

started going for his job. She did not work as she was angry.

Therefore, her husband poured kerosene on her person, lit a

matchstick and set her on fire. She started shouting. She called

Amol. This was the statement given by her. PW-2 again enquired

with the Doctor about her condition. The Doctor again gave his

endorsement that the patient was conscious and could give a

statement. The deceased had a grievance against the present

appellant. After the statement was over, PW-2 obtained an

endorsement of the Doctor. The statement was readover to the

patient. She admitted the contents. PW-2 obtained the impression

of her right toe on the statement. The statement is produced on

record at Exhibit-17.


           In the cross-examination, he deposed that he received
                          7 of 28                901-apeal-1075-24 (J).odt


the letter at 1:00p.m. on 13.09.2015. He reached Sassoon Hospital

around 1:30p.m. to 1:45p.m. He met the police from Saswad

police station in the hospital. He met the doctor in Ward No.25.

The patient was on the first bed on the left side. Nobody else was

present near the patient. Her relatives were not present. Her face

was not covered, but other portion of the body was covered. No

intravenous treatment was given to the patient. He did not enquire

with the doctor regarding any drug or pain-killer administered to

her. He asked the patient about her name and address to assess her

medical condition. He did not write this particular fact on the

dying declaration. The recording of dying declaration took about

ten minutes. While speaking, she was taking small breaks. The

dying declaration was written in his own handwriting.


8.         The dying declaration at Exhibit-17 described the

incident as was deposed by this witness. It bears an endorsement

of Dr. Rohit, that the patient was conscious and could give

statement. Such endorsement is found at three places on the dying

declaration. It was at the beginning of the Statement, in the

middle of the main portion of the statement and at the conclusion
                          8 of 28                 901-apeal-1075-24 (J).odt


of the statement. The starting time of the recording of the

statement is mentioned as 2:05p.m. and it ended at 2:15p.m. Both

these timings are mentioned in the dying declaration.


9.         PW-6 API Rajesh Malegave was the police officer who

had recorded the dying declaration before the dying declaration

(Exhibit-17) was recorded by PW-2 Rajendra. PW-6 deposed that,

he was attached to Saswad police station. On 13.09.2015, they

received the information from Sassoon Hospital regarding a burn

case. The patient’s name was Manisha Paraskar. After making the

station diary entry, he reached Sassoon Hospital. He made enquiry

with the Medical Officer on duty as to whether the patient was in a

position to give statement. When the Medical Officer gave answer

in the affirmative, he recorded Manisha’s statement in presence of

the Medical Officer. She told this witness that, since she was of

black complexion, the Appellant was not happy to cohabit with

her. He used to illtreat her. At about 4:35a.m. on 12.09.2015 the

Appellant poured kerosene on her and set her on fire. PW-6

recorded the statement in detail and obtained impression of her

right toe. He obtained the signature of the Medical Officer. The
                           9 of 28                901-apeal-1075-24 (J).odt


statement is produced on record at Exhibit-38.


           In the cross-examination, he deposed that, he reached

Sassoon Hospital at around 12:00p.m. They had received the

information at about 10:00a.m. on 12.09.2015. When he reached

Sassoon Hospital, Manisha’s relatives were not present. He put

certain questions to her in order to assess her mental capacity. The

recording of the statement lasted for about 30 to 45 minutes. After

the recording of the statement was over, he sent a letter-Exhibit-16

to the Tahsildar requesting for recording of the dying declaration.

After the Tahsildar came to Sassoon Hospital, PW-6 did not

accompany him inside the Ward. The statement recorded by him is

produced on record at Exhibit-38. It bears an endorsement of

Dr. Rohit Kumar Pandey that the patient was conscious and could

give a statement.


10.        The statement mentions a detailed history. She has

stated that it was her second marriage. It took place on

16.04.2015. The Appellant used to illtreat her. He was not happy

about her complexion. PW-8 Shivaji helped both of them to get a
                          10 of 28                901-apeal-1075-24 (J).odt


job, but the Appellant continued illtreating her. He wanted a

divorce. He wanted to go to their native place. On one occasion, he

had tried to assault her with a knife. On 11.09.2015, they had

gone to Jejuri. While returning, they had some snacks and,

therefore, she did not cook food. They slept without having dinner.

In the morning, she was sleeping. The Appellant poured kerosene

on her and set her on fire. She sought help from PW-7 Amol and

PW-8 Shivaji. They rushed there. They made her sit under a water

tap and then took her to Saswad PHC and thereafter to Sassoon

Hospital.


            Significantly, she mentioned that on 12.09.2015 she

had given her statement, in which, she had stated that she had

caught fire because of the bursting of the stove, but she explained

that the Appellant had threatened her and, therefore, under that

pressure, she had given that statement.


11.         At this stage, it is necessary to refer to the said

statement dated 12.09.2015. Though, it is marked as Exhibit-38A,

it is not proved by any witness. The contents of that statement are
                          11 of 28               901-apeal-1075-24 (J).odt


not proved. There is an endorsement by the Doctor, but even that

endorsement is not proved. That Doctor is not examined. The

deceased in that statement had stated that she had caught fire

because of the bursting of the stove, but the contents of Exhibit-

38A are not proved.


12.        Learned counsel submitted that, at least, adverse

inference be drawn that there was one statement in favour of the

Appellant that the prosecution has suppressed.


13.        The next important witness is PW-3 Dr. Rohit Kumar

Pandey, who had made endorsements on both these dying

declarations Exhibit-17 and Exhibit-38. He deposed that, in 2015,

he was working as a resident doctor at BJ Medical College and

Sassoon Hospital, Pune. On 13.09.2015, he was on duty. Manisha

was treated as an indoor patient in Ward No.25. The police

approached him for recording her statement. At that time, she was

conscious and oriented to give her statement. He made an

endorsement which he identified at Exhibit-22. The said Exhibit-22

is an endorsement on Exhibit-38 i.e. the dying declaration
                            12 of 28              901-apeal-1075-24 (J).odt


recorded by PW-6 Rajesh. He further deposed that, on the same

day, a Nayab Tahsildar came to his hospital. He also wanted to

record the statement of the patient. At that time also the patient

was conscious, oriented and could give a statement. PW-3 was

shown an endorsement on the dying declaration at Exhibit-17. He

identified that endorsement as well. He deposed that, even at the

end of the statement, he gave another endorsement about the

condition of the patient. He identified all the three endorsements

on Exhibit-17. According to him, the orientation of such patient

depends upon the percentage of burns and the percentage of

intoxication and other injuries.


            In the cross-examination, he deposed that he was on

duty since 2:15p.m.on 13.09.2015. On that day, for the first time,

he examined Manisha. He did not remember if there was anybody

else present except his assistants. He examined the patient. He had

given I.V. fluid, analgesic and antibiotics as per the protocol. The

patient was having burn injuries over the face and neck. He did

not remember as to whether, except for the police anyone else was

present while the statement was recorded.
                            13 of 28              901-apeal-1075-24 (J).odt


14.           PW-7 Amol Satav is another important witness. He was

working in the same company as that of the Appellant. He was

staying nearby. The day before the incident, he had accompanied

the Appellant and his wife and PW-8 Shivaji to Jejuri. There was a

quarrel between the Appellant and his wife. The Appellant had

slapped her. PW-7 and PW-8 Shivaji had intervened and stopped

them. They all returned home and had gone to their respective

rooms. They got up at 4:00a.m. PW-7, PW-8 Shivaji and four

others were residing in one room. The four roommates had left for

the work. He saw smoke coming from the Appellant’s room. PW-7

and PW-8 rushed there. They broke open the door. They saw that

Manisha had caught fire. She came running out of the room. They

made her sit under a water tap. The Appellant was standing in the

room. Manisha told them that the Appellant had set her on fire by

pouring kerosene on her. After that she was taken to the hospital.

The police recorded his statement. His statement was also

recorded U/s.164 of the Cr.PC. He identified his statement. It is

produced on record at Exhibit-43. It substantially corroborates his

deposition.
                           14 of 28               901-apeal-1075-24 (J).odt


           In the cross-examination, he deposed that he was

staying in the room which was two rooms away from the

Appellant’s room. The Appellant, his wife, PW-7, PW-8 Shivaji and

others used to go to work at 4:00a.m. to feed chicken at the

poultry farm. He deposed that they had asked Manisha to come

towards the tap. There was smoke inside the room. Thereafter he

had not gone back inside the room. At that time, Manisha was

completely burnt from head to toe. They took Manisha in the

company’s tempo to the hospital. He did not go to the hospital in

the same tempo. He went to Sassoon Hospital on the next day. He

had seen Manisha’s father there. He deposed that, before

extinguishing the fire, they had put a blanket on her and after that

she had told them as to how she had caught fire. When they

extinguished the fire, the Appellant was standing beside her. PW-7

had gone to Sassoon Hospital on the same day in the afternoon.

He had met the police. He had told the police as to how she was

burnt or how she had suffered burn injuries.


           His attention was drawn to portion marked-A in his

statement which mentioned that his statement was read-over to
                           15 of 28                901-apeal-1075-24 (J).odt


him and it was correctly written. However, he had also deposed

that he could not read Marathi. Therefore, the defence wanted to

show that he did not understand what the police had written in

that statement.


15.        Again, in the statement recorded U/s.164 of the Cr.PC

which is produced on record at Exhibit-43, there was a similar

sentence that he had read his statement which was recorded in

Marathi and it was correct. He clarified that the entire statement is

correct except that particular sentence.


16.        PW-8 Shivaji Nagulkar was another friend. He was

Manisha’s cousin. His evidence is exactly the same as that of PW-7

Amol. His statement recorded U/s.164 of the Cr.PC is produced on

record at Exhibit-45. His cross-examination also proceeded on

similar lines. In addition, he deposed that the police had recorded

Manisha’s statement on 12.09.2015. He could not state who were

present when the police had recorded Manisha’s statement. Her

parents were with her throughout.


17.        PW-1 Naresh More was a pancha for the spot
                           16 of 28               901-apeal-1075-24 (J).odt


panchanama which is produced on record at Exhibit-12. On

13.09.2015 he was called to conduct the panchanama. The police

had seized a half burnt pant, one solapuri chadar, one five liter

plastic can, one matchbox and half burnt match stick. According to

him, there was smell of kerosene in the room. The police seized

and sealed those articles in his presence. The panchanama was

conducted between 10:00p.m. to 11:30p.m.


           In the cross-examination, he deposed that he was

working at Talab Farm, Bhivari, as Supervisor. About twenty people

worked under him. He knew PW-7 Amol and PW-8 Shivaji who

were the residents of Talab Farm and working there. He admitted

that, there was a stove in the corner at the spot. The spot

panchanama also refers to a stove in the corner of the room. There

is no further description of the stove in the spot panchanama.


18.        PW-4 Sudhir Badade was a pancha in whose presence

the Appellant made a statement to show his willingness to point

out the place where he had kept his clothes. The statement was

recorded. It is produced on record at Exhibit-25. The Appellant led
                           17 of 28                  901-apeal-1075-24 (J).odt


the police and the panchas to Room No.4. The clothes were

hanging on the wall in the room. Those clothes i.e. Baniyan, pant

and underwear were seized. The clothes seizure panchanama is

produced on record at Exhibit-26.


19.        PW-5    Dr.   Hemant       Vaidya   had    conducted          the

postmortem examination. He deposed that the deceased had

suffered superficial to deep burn injuries. She had suffered injuries

on the head, neck, face, chest, abdomen, back and both upper and

lower limbs. The total surface area burnt was 87%. The cause of

the death was mentioned as “Death due to shock due to burns”.

The postmortem notes are produced on record at Exhibit-28. The

PM notes also mention that there was blue ink mark over the left

thumb and on the right big toe.


20.        PW-9 API Navnath Babanrao Saste had conducted the

investigation from 13.09.2015 onwards. He deposed about

conducting the spot panchanama, the seizure of Appellant’s clothes

panchanama, conducting inquest panchanama etc. The Appellant’s

clothes were recovered on 16.09.2015 at his instance.
                           18 of 28                901-apeal-1075-24 (J).odt


           In the cross-examination, he admitted that, the first

dying declaration recorded by the police was treated as an FIR. It

was mentioned that the deceased had given her statement on

12.09.2015 as well.


           This, in short, is the evidence led by the prosecution.


SUBMISSIONS OF SHRI. SHAILESH KHARAT, LEARNED COUNSEL
FOR THE APPELLANT:

21.        Learned counsel for the Appellant submitted that the

prosecution has deliberately suppressed the first dying declaration

exonerating the Appellant, recorded on 12.09.2015. Therefore,

adverse inference needs to be drawn. Two written dying

declarations were recorded on 13.09.2015. No explanation is

offered as to why they were not recorded on 12.09.2015. The

inquest panchanama does not mention about the ink on the big toe

of the deceased. The dying declarations were recorded after the

relatives had come to the hospital and after they had tutored the

deceased. Therefore, those two dying declarations are not reliable.

The statement recorded by PW-6 Rajesh is too elaborate. A

seriously burnt patient could not have given too many details.
                           19 of 28               901-apeal-1075-24 (J).odt


Different reasons are mentioned in the dying declarations at

Exhibit-17 and 38. The reasons for commission of this offence

mentioned in both these dying declarations are not consistent. The

Appellant is acquitted from the charges of commission of the

offence punishable U/s.498A of the IPC. There are contradictions

in the evidence of PW-7 Amol and PW-8 Shivaji. If both of them

had tried to extinguish the fire, there are no injuries on the

persons of PW-7 and PW-8. They did not disclose about the

incident to anybody immediately. If their statements were recorded

on 12.09.2015, there is no reason as to why the FIR was not

lodged based on their statements. There was a lid on the can of

kerosene. There was no occasion for the Appellant to put a lid on

the can, if he had committed that offence. He submitted that the

evidence of the Medical Officer does not inspire confidence and,

therefore, endorsements on the dying declarations are not reliable.


SUBMISSIONS OF SMT. M. M. DESHMUKH, LEARNED APP FOR
THE STATE

22.        Learned APP submitted that this incident took place

within four months of the marriage. The incident took place at
                          20 of 28               901-apeal-1075-24 (J).odt


4:00a.m. Only the Appellant and the deceased were present in the

room, therefore, it was for the Appellant to explain as to how the

incident had taken place. Under section 106 of the Evidence Act,

the burden to explain these circumstances, which are exclusively

within the knowledge of the Appellant, was squarely on him. The

chain of events shows that from the previous evening itself there

was some altercation between the Appellant and the deceased;

which ultimately led to the commission of this offence by the

Appellant. The conduct of the Appellant does not inspire

confidence. It is completely unnatural. He had not tried to

extinguish the fire and if he did so, there are no injuries to his

hands. He was merely standing there which shows that he had

committed that offence. He had not even taken the trouble to take

her to the hospital. There are two written dying declarations and

two oral dying declarations made to PW-7 Amol and PW-8 Shivaji.

Hence, there is consistent evidence and circumstances against the

Appellant.
                               21 of 28                       901-apeal-1075-24 (J).odt


REASONS AND CONCLUSION


23.          We have considered these submissions. As far as

Exhibit-38A is concerned, as we have discussed earlier, the

contents of that statement are not proved. Neither the prosecution

nor the defence had examined the officer who had written that

dying declaration. The endorsement on that dying declaration was

made by some Doctor; even that Doctor was not examined.

Therefore,    the   contents      of      that   particular     statement         are

inadmissible and are not proved.


24.          There is a reference to the statement recorded on

12.09.2015 in the FIR itself which is the statement recorded by

PW-6 Rajesh. However, in that very context, it is mentioned in the

FIR that she had given the statement on 12.09.2015 under the

threats by the Appellant. Thus, the evidence regarding Exhibit-38A

which was the purported statement recorded on 12.09.2015 is not

helpful to the defence.


25.          The main evidence in this case is about the two written

dying declarations. The first dying declaration was treated as an
                          22 of 28               901-apeal-1075-24 (J).odt


FIR which was recorded by PW-6 Rajesh-the police officer. The

Medical Officer was constantly present during the recording of the

dying declaration and he had given the endorsement. The Medical

officer gave an endorsement that the patient was conscious,

oriented and could give her statement. Therefore, the recording of

that statement in presence of this Medical Officer can hardly be

doubted. The deceased had given more details in her statement

than those which she had given in the statement recorded by PW-2

S.E.M. Waydande. That by itself cannot be a reason to discard the

statement recorded by the police officer. Importantly, the Medical

Officer was present throughout and he has supported the case of

the prosecution that the deceased was in a position to give that

particular statement.


26.        After said statement i.e. Exhibit-38 which was treated

as an FIR was recorded, the S.E.M. PW-2 Rajendra had recorded

her second dying declaration which is produced on record at

Exhibit-17. The said statement bears PW-3 Dr. Rohit Pandey’s

endorsements at three places; one at the beginning, the second

after the middle portion was recorded and third one at the end of
                           23 of 28               901-apeal-1075-24 (J).odt


the statement. On all these three occasions, the Medical Officer

had mentioned that the patient was conscious, oriented and could

give the statement. Thus, this statement, in particular, is quite

reliable where she had clearly stated that when the Appellant was

about to go to work, she had not helped him as she was angry.

She was sleeping and, therefore, the Appellant poured kerosene on

her and set her on fire. This statement describes the main incident.

We find this statement quite reliable and it bears the opinion and

endorsement of the Medical Officer. A specific role is attributed to

the Appellant. The evidence of PW-2 SEM Rajendra Waydande

inspires confidence and is reliable. Therefore, this is the most

incriminating piece of evidence proved by the prosecution against

the Appellant.


27.        Apart from these two dying declarations, there is

evidence of two oral dying declarations made to PW-7 Amol and

PW-8 Shivaji. Both of them immediately rushed to the spot when

the deceased caught fire. They had helped her reach a water tap.

Both of them have deposed that the deceased had told them that

the Appellant had poured kerosene on her and set her on fire.
                          24 of 28                901-apeal-1075-24 (J).odt


Manisha had told PW-7 Amol about the incident when he had gone

to the room itself. The same is the case with PW-8 Shivaji. He also

deposed that when he reached the room, he asked Manisha as to

what happened. At that time, Manisha told him that the Appellant

had poured kerosene on her and had set her on fire. Both these

statements are consistent. Both these witnesses are natural

witnesses. They were the immediate neighbours of the couple.

They both deposed that there was a fight between the couple.

Thus, the evidence of PW-7 Amol and PW-8 Shivaji regarding the

incident fully corroborates the evidence of written dying

declaration.


28.        Apart from the circumstance of oral dying declarations,

PW-7 Amol and PW-8 Shivaji have also deposed about the conduct

of the Appellant when both of them had reached the room. PW-7

Amol had stated that, they broke opened the door of the room.

That means, the Appellant had committed this offence and had

kept the door closed. Thus, only because of the efforts of PW-7

Amol and PW-8 Shivaji the deceased could come out of the room.

The Appellant was merely standing there. He did not help PW-7
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and PW-8 to extinguish the fire. He himself did not try to help the

deceased. The deceased was burning. She had suffered intensive

burn injuries. If he had tried to save the deceased immediately, at

least, there could be some signs of injuries on his hands. Learned

counsel for the Appellant submitted that same reasoning would

also apply to PW-7 Amol and PW-8 Shivaji who also had not

suffered injuries to their hands.    However, both of them had

reached the room subsequently. They had put a blanket on the

deceased and then she had gone to sit under the water tap. PW-7

Amol and PW-8 Shivaji have explained their conduct sufficiently,

whereas, the Appellant had not uttered a word as to what efforts

he had taken to extinguish the fire and as to why he had not called

for help from others. The conduct of the Appellant is not in

conformity with his defence that the deceased had caught fire

accidentally. He had not taken any efforts to get help from others

who were residing nearby. He had not called PW-7 and PW-8. They

had come on their own after hearing the shouts of the deceased.

The conduct of the Appellant is not in consonance with his defence

of innocence.
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29.        The finding of the lid on the can of kerosene also does

not make much difference to the prosecution case in view of the

fact that there is consistent evidence in the form of oral and dying

declarations and other circumstances which we have discussed

herein above. Learned counsel for the Appellant submitted that the

police had not recorded the statement on 12.09.2015. However,

there is a reference to recording of the statement on 12.09.2015,

but at that time, the deceased had not made any allegation and,

therefore, no steps were taken by the police. It is only on

13.09.2015 when she made specific allegations against the

Appellant, an FIR was lodged and then her statement was

recorded by PW-2 S.E.M. Rajendra. The postmortem notes mention

that Manisha had succumbed to her injuries on 14.09.2015 at

5:15p.m. Thus, she had survived more than a day after her dying

declarations were recorded. As mentioned earlier, the medical

evidence in this case is satisfactory that she was in a position to

give the statement. There is nothing to show that the dying

declarations were given because she was tutored by her relatives.

Even before her relatives arrived, she had made oral dying
                            27 of 28               901-apeal-1075-24 (J).odt


declarations to PW-7 Amol and PW-8 Shivaji. Their evidences

corroborate the written dying declarations. Considering all these

aspects, we are satisfied that the prosecution has proved its case

beyond reasonable doubt; that the Appellant had poured kerosene

on her and set her on fire. However, we find that the learned

Judge committed an error in convicting and sentencing the

Appellant for commission of the offences punishable under

sections 307 and 323 of the IPC. To that extent, we do not find any

evidence to support the conviction and sentence under these two

sections. There is no evidence to support the conviction and

sentence U/s.506 of the IPC, as well. The conviction and sentence

recorded under sections 307, 323 and 506 of the IPC are required

to be set aside.


30.         Hence, the following order:


                              ORDER


              i)   The Appeal is partly allowed.

              ii) The conviction and sentence for commission of
                   the offence punishable under section 302 of the
                   IPC for which he is sentenced to suffer
                         28 of 28                 901-apeal-1075-24 (J).odt


               imprisonment for life and to pay a fine of
               Rs.10000/- are maintained.

           iii) However, the conviction and sentence recorded
               for commission of the offences punishable under
               sections 307, 323 and 506 of the IPC are set
               aside.

           iv) He is entitled to set off U/s.428 of the Cr.P.C.




(RANJITSINHA RAJA BHONSALE, J.)         (SARANG V. KOTWAL, J.)


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