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
- Code of Criminal Procedure, 1973 — s. 164, 313, 428
- Indian Evidence Act, 1872 — s. 106
- Indian Penal Code — s. 302, 307, 323, 498A, 504, 506
Subjects
- murder
- attempt to murder
- voluntarily causing hurt
- criminal intimidation
- dying declaration
- evidence reliability
- appeal
- conviction set aside
Judgment
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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
3 of 28 901-apeal-1075-24 (J).odt
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.
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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
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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
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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
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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
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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.
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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.
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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
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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
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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.
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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
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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.
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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
25 of 28 901-apeal-1075-24 (J).odt
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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