PRAMOD S/O ANURATH GAIKWAD AND ANRversusTHE STATE OF MAHARASHTRA

2026:BHC-AUG:40451


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                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                 CRIMINAL APPEAL NO. 155 of 2016

                 1.    Pramod s/o Anurath Gaikwad,
                       Age : 28 years, Occu : Labour,
                       R/o Talkhed, Taluka Majalgaon,
                       District Beed.

                 2.    Madhu d/o Anurath Gaikwad,
                       Age : 21 years, Occu : Labour,
                       R/o Talkhed, Taluka Majalgaon,
                       District Beed.                             … Appellants
                                                            [Orig. Accused Nos. 1&2]

                             Versus


                       The State of Maharashtra                   … Respondent

                                                   …..
                 Mr. Sudarshan J. Salunke, Advocate for the Appellants.
                 Mrs. A. S. Mantri, APP for the Respondent-State.
                                                   .....

                                         CORAM :        ABHAY S. WAGHWASE, J.
                                         Reserved on        : 02.09.2026
                                         Pronounced on      : 04.09.2026

                 JUDGMENT :


                 1.    Both appellants challenge the judgment and order of conviction

                 dated 05.03.2016 passed by learned Additional Sessions Judge,

                 Majalgaon in Sessions Case No. 09 of 2015, convicting them for

                 offence under Section 452 r/w 34 and Section 304 Part-II of IPC.
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2.    Case of prosecution in trial court was that, appellants-original

accused, who are neighbours of deceased Nita, entered her house on

05.10.2014 at 7.00 p.m. while she was alone and accusing her for

indulging in black magic, it is alleged that, accused Pramod poured

kerosene and accused Madhu incinerated her, causing her 88% burns

to which she ultimately succumbed. Based on her dying declaration,

crime was registered and finally investigated by PW8 who gathered

sufficient evidence and chargesheeted accused for offence under

Sections 302, 452 r/w 34 of IPC. In all five persons, including present

appellants were tried.



      At trial, prosecution adduced evidence of in all 8 witnesses and

relied on documentary evidence like dying declarations, FIR, spot

panchanama etc. Defence also adduced evidence of two witnesses i.e.

DW1 and DW2. After hearing both sides and on appreciating

respective evidence adduced by the parties, learned trial Judge

acquitted accused nos. 3, 4 and 5 from all charges, but convicted

accused nos. 1 and 2, that too for offence under Section 304 Part-II

and 452 of IPC. Hence, the instant appeal.
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                    APPRECIATION OF EVIDENCE


Status of the Prosecution Witnesses :


3.    PW1-pancha to spot panchanama Exhibit 20, PW2-Special

Executive Magistrate, PW3-autopsy surgeon, PW4-Father-in-law of

deceased, PW5-Carrier, PW6-neighbour, PW7-Police Constable and

PW8-Investigating Officer.


      Evidence can be categorized into dying declaration Exhibits 25

and 42 and oral evidence of PW4, PW6 and PW7.



Dying Declarations :

4.    There are two dying declarations, one recorded by PW7 Police

Head Constable which is at Exhibit 42 and second dying declaration is

recorded by PW2 which is at Exhibit 25. Both dying declarations are

held by trial court to be consistent, inspiring confidence and worthy of

credence. Both dying declarations are now put to minute scrutiny.



First Dying Declaration

5.     The first dying declaration is at Exhibit 42 and it is authored by

PW7. On bare look of the statement, it is noticed that prior to

recording dying declaration, there is certification by Medical Officer
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about patient to be conscious, oriented for giving valid consent. In

initial part of dying declaration, after introducing herself, deceased

informed the names of five accused to be residing in her

neighbourhood and they questioning her for conducting black magic

and burning sari of Sushma and abusing her. Regarding the

occurrence dated 05.10.2014, she informed that, around 07.00 p.m.

while she was alone in the house, Pramod Gaikwad and Madhu

Gaikwad entered her house saying that she has done black magic and

thereafter, Pramod Gaikwad lifted kerosene can from her house,

abused her, poured kerosene on her and his sister Madhu threw a

burning match stick on her, as a result of which she caught fire and

they both ran away. Her dying declaration carries her thumb

impression followed by its identification and again certification of

Doctor on the point of fitness till conclusion of dying declaration.



6.    PW7, who noted the above dying declaration, is examined at

Exhibit 41 and after stating that he received MLC paper Exhibit 28, he

immediately went to Burns Ward of Civil Hospital, Beed and

approached and requested In-charge Doctor to examine deceased for

ascertaining whether she is conscious and able to make statement or

not. He then deposed that accordingly In-charge Doctor examined

deceased and opined that she was conscious and able to make
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statement and accordingly made endorsement on the paper on which

he recorded dying declaration. He further deposed that, he also

himself got confirmed whether patient was conscious and able to

make statement and recorded dying declaration as per her say

wherein she stated that, since last one month, accused namely

Pramod, Madhu, Devinanda, Sushma and mother of Sushma were

harassing her on the count of doing black magic. He deposed that, she

stated that on 05.10.2014 at around 7.00 p.m. when she was present

in the house, accused Pramod and Madhu came in her house,

questioned her for doing black magic, abused her and then accused

Pramod took can of kerosene from her house, poured kerosene on her

person whereas accused Madhu set her on fire and they both ran

away.



        Above witness is subjected to extensive cross and in the initial

cross he admitted that MLC refers to the incident as accidental burn,

but he is unable to state which Doctor sent the MLC paper. He

admitted about not seeing admission papers, not issuing written

communication to the In-charge Doctor. But he named Dr. Raut for

putting endorsement on dying declaration Exhibit 42. He denied

relatives of deceased to be present at the time of recording dying

declaration and denied that, he obtained endorsement of Doctor by
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going to his cabin. He answered that, he did not mention timing of

recording dying declaration. He also denied that she was unconscious

and not in position to speak and that he falsely deposed about it. He

also denied about he not reading over statement to the deceased after

it was recorded. Rest all suggestions are denied.



Second Dying Declaration

7.    Second dying declaration Exhibit 25 is recorded by PW2 and it

is in question-answer form. It is shown to be recorded on 06.10.2014

at around 12.00 hours. It carries certification that patient is conscious,

oriented and able to give statement. Regarding the occurrence, while

answering question to that extent, she stated that on 05.10.2014

around 7.00 p.m. while she was alone in the house and her parents-

in-law had been to drop her parents at bus stand, her neighbour who

continuously quarreled with her and whom she named, entered in the

house and questioned her for the episode of burns to sari of Sushma.

She stated that, Pramod and his sister Madhu abused her. Pramod

poured kerosene from the can in her house and they both ignited her.



8.    Witness PW2 who recorded this dying declaration is examined

at Exhibit 23, who testified that on receipt of letter from        Police

Chowki of Civil Hospital, Beed, she went to Civil Hospital and claims
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to have requested Medical Officer who examined the burnt lady Nita

to ascertain whether she is conscious and able to make statement or

not, and accordingly Medical Officer examined Nita and opined that

patient is conscious and able to make statement and Medical Officer

also made endorsement on the proforma on which her statement was

recorded. She further deposed that she also got confirmed whether

patient is conscious and able to make statement and thereafter

recorded dying declaration in question answer form. Witness has

stated that, statement was given that she was married and having

good relations with the family, she had twins aged 7 months and her

husband to be a rickshaw driver whereas her parents-in-law to be

agricultural worker and labour respectively. Witness deposed that

when she asked about the incident, it was narrated that, always there

was quarrel between her and her adjacent householders, namely,

Pramod Gaikwad and his sister Madhu. She also stated that, both

these accused entered her house saying that she is doing black magic

and thereafter accused no.1 poured kerosene and accused no.2

Madhu set her on fire and at that time, her parents-in-law had been to

the bus stand to see off her parents. When they returned, she was

taken to hospital at Talkhed and Medical Officer there directed her to

be shifted to Civil Hospital, Beed. Witness also deposed that at the

time of recording the dying declaration, she noticed her both hands,
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legs, stomach, chest were burnt and after completion of statement,

she read over contests of the statement to her and she admitted the

contents to be true and correct and thereafter she obtained right toe

impression on her statement and witness identified dying declaration

at Exhibit 25 and its carbon copy at Exhibit 27.



      Above witness is also subjected to cross, during which witness is

unable to remember the name of the Constable who handed over

letter Exhibit 24. She answered that Tahsildar issued order in her

favour for recording dying declaration but she not carrying the said

order in the Court. She answered that, on the same day of recording

dying declaration, she handed over original dying declaration at

Police Chowki at Civil Hospital but she is unable to give name of the

Constable to whom it was handed over. She admitted not recording

time of starting dying declaration and the time at which it ended. She

answered that, patient was admitted in burn ward no.7 and that she

met in his chamber, who made endorsement on the statement. Rest is

all denial.



Law on Evidentiary Value of Dying Declarations :

9.    Before appreciating the credibility of above dying declarations,

it would be profitable to throw light on settled judicial precedent on
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the aspect of evidentiary value of dying declaration and the manner of

its appreciation. Since the judgment of Khushal Rao v. State of

Bombay; AIR 1958 SC 22 , on numerous occasions law on this aspect

has been propounded and certain principles have been culled out

from plethora of judgments by the Hon’ble Apex Court. Very recently

the Hon’ble Supreme Court in the case of State of Uttar Pradesh v.

Veerpal and Another; (2022) 4 Supreme Court Cases 741 , while

deciding Criminal Appeal No.34 of 2022 on 01-02-2022, has

reiterated the principles to be borne in mind while analyzing and

accepting dying declaration. The settled principles are as follows :


     “(1) It cannot be laid down as an absolute rule of law that
     a dying declaration cannot form the sole basis of conviction
     unless it is corroborated;

     (2) Each case must be determined on its own facts keeping
     in view the circumstances in which the dying declaration
     was made;

     (3) It cannot be laid down as a general proposition that a
     dying declaration is a weaker kind of evidence than other
     pieces of evidence;

     (4) A dying declaration stands on the same footing as
     another piece of evidence and has to be judged in the light
     of surrounding circumstances and with reference to the
     principles governing the weighing of evidence;
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    (5) A dying declaration which has been recorded by a
    competent Magistrate in the proper manner, that is to say,
    in the form of questions and answers, and, as far as
    practicable, in the words of the maker of the declaration,
    stands on a much higher footing than a dying declaration
    which depends upon oral testimony which may suffer from
    all the infirmities of human memory and human character :
    and

    6) In order to test the reliability of a dying declaration, the
    court has to keep in view, the circumstances like the
    opportunity of the dying man for observation, for example,
    whether there was sufficient light if the crime was
    committed at night; whether the capacity of the man to
    remember the facts stated, had not been impaired at the
    time he was making the statement, by circumstances
    beyond his control; that the statement has been consistent
    throughout if he had several opportunities of making a
    dying declaration apart from the official record of it; and
    that the statement had been made at the earliest
    opportunity and was not the result of tutoring by interested
    parties.”


      Other celebrated and water-shedding judgments on above

aspects are (i) Laxman v. State of Maharashtra; (2002) 6 SCC 710 (ii)

Jagbir Singh v. State (NCT of Delhi); (2019) 8 SCC 779.
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10.     Here, there are two dying declarations, i.e. more than one, at

Exhibit 25 and Exhibit 42 respectively. On the point of two or

multiple dying declarations, law is also crystallized in the judgments

of Hon’ble Apex Court in the case of State of Punjab v. Parveen

Kumar AIR 2005 SC 1277; Amol Singh v. State of M.P. (2008) 5 SCC

468, Jagbir Singh v. State (NCT OF Delhi) 2019 (8) SCC 779 and

Makhan Singh v. State of Haryana (2022) SCC OnLine SC 1019.



11.     In Smt. Paniben v. State of Gujarat 1992 SCC OnLine SC 355,

the Hon’ble Apex Court has summarized the principles governing the

circumstances under which a dying declaration may be accepted

without corroboration, as under :


      “(i) There is neither rule of law nor of prudence that dying
      declaration cannot be acted upon without corroboration.
      (Munnu Raja v. State of M.P. [(1976) 3 SCC 1041)


      (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 [(1985) 1
      SCC 552])


      (iii) This 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
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opportunity to observe and identify the assailants and was in
a fit state to make the declaration. (K. Ramachandra Reddy v.
Public Prosecutor [(1976) 3 SCC 618]


(iv) Where dying declaration is suspicious it should not be
acted upon without corroborative evidence (Rasheed Beg v.
State of M.P. [(1974) 4 SCC 264])


(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. [1981 Supp SCC
251)


(vi) A dying declaration which suffers from infirmity cannot
form the basis of conviction. (Ram Manorath v. State of U.P.
[(1981) 2 SCC 654])


(vii) Merely because a dying declaration does not contain the
details as to the occurrence, it is not to be rejected. (State of
Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp
SCC 455])


(viii) Equally, merely because it is a brief statement, it is not
to be discarded. On the contrary, the shortness of the
statement itself guarantees truth. (Surajdeo Oza v. State of
Bihar [1980 Supp SCC 769])


(ix) Normally the court in order to satisfy itself whether the
deceased was in a fit mental condition to make the dying
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   declaration look up to the medical opinion. But where the
   eyewitness has said that the deceased was in a fit and
   conscious state to make this dying declaration, the medical
   opinion cannot prevail. (Nanhau Ram v. State of M.P. [1988
   Supp SCC 152])


   (x) Where the prosecution version differs from the version as
   given in the dying declaration, the said declaration cannot be
   acted upon. (State of U.P. v. Madan Mohan [(1989) 3 SCC
   390])”



     In the recent judgment of Uttam v. State of Maharashtra (2022)

8 SCC 576, in para 9, the principles that are culled out are

reproduced as under :


  “9.1 The primary requirement for all dying declarations is that
       they should be voluntary and reliable and that such
       statements should be in a fit state of mind;


  9.2 All dying declarations should be consistent. In other
       words, inconsistencies between such statements should
       be 'material' for its credibility to be shaken;


  9.3 When inconsistencies are found between various dying
       declarations, other evidence available on record may be
       considered for the purposes of corroboration of the
       contents of dying declarations.
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  9.4 The statement treated as a dying declaration must be
       interpreted    in   light   of     surrounding    facts   and
       circumstances.


  9.5 Each declaration must be scrutinized on its own merits.
       The court has to examine upon which of the statements
       reliance can be placed in order for the case to proceed
       further.


  9.6 When there are inconsistencies, the statement that has
       been recorded by a Magistrate or like higher officer can
       be relied on, subject to the indispensable qualities of
       truthfulness and being free of suspicion.


  9.7 In the presence of inconsistencies, the medical fitness of
       the person making such declaration, at the relevant time,
       assumes importance along with other factors such as the
       possibility of tutoring by relatives, etc.”



12.   Keeping above settled position in mind, Exhibit 25 and Exhibit

42 are visited. As stated above, both dying declarations carry

certification of fitness. First dying declaration Exhibit 42 carries

certificate of fitness before recording and even at the conclusion.

Doctor’s signature also carries timing of recording dying declaration.

Both certificates of fitness are about consciousness and orientation.

Similarly, Exhibit 25 which is in question-answer form, also carries
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timing of commencement of dying declaration, certification of fitness

at the beginning and even certification of fitness at the conclusion.

Both dying declarations bear thumb and toe impression respectively.

The translated version of both dying declarations are that, accused

neighbours picking up quarrel suspecting black magic by deceased. In

both dying declarations it is reported that on 05.10.2014 around 7.00

p.m. while victim was alone and her parents-in-law had been to see

off her own parents at bus stand, accused Pramod and accused

Madhu entered her house, abused her on above count and after

accused no.1 poured kerosene from can in the house, accused no.2

ignited her. Therefore, on the point of overt act of appellants, both

dying declarations are apparently consistent.



13.   Learned counsel for the appellants questioned the credibility

and reliability of dying declarations on the count that, firstly, there is

no time over the dying declarations. Secondly, both versions to be

inconsistent. Thirdly, Doctor issuing certification of fitness not being

examined.



14.   As stated above, on both, Exhibit 25 and Exhibit 42, time of

recording dying declaration is noted. Both dying declarations carry

certification of fitness at the inception as well as at the conclusion
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regarding patient to be conscious and oriented and in a position to

give statement. Both carry toe and thumb impression respectively.

Both witnesses, i.e. PW2 and PW7 have narrated whatever they have

heard from deceased while recording respective dying declarations

and it is also noticed that they both have deposed about they

personally verifying condition of deceased to give statement and

thereafter her statements were recorded. Therefore, mere failure of

prosecution to examine certifying doctor is no good ground to discard

the consistent dying declarations. Moreover, witness PW7 has named

Dr. Raut for examining and certifying fitness.



15.   Law is fairly settled that, examining certifying doctor is just a

rule of prudence and not a mandate. When there are more that one

dying declarations, once the court is convinced on its appreciation

that they are consistent and inspiring confidence and appearing to be

truthful version of deceased, there should be no hesitation to not only

accept the same, but also to rely on the same.



16.   Resultantly, both dying declarations which are reproduced

above in translated form, are inspiring confidence and are thus

worthy of reliance. There is no patent infirmity or lacuna or any

suspicion so as to discard the same.
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Oral Evidence

17.   Apart form above dying declarations before the trial court,

prosecution has also examined oral evidence of PW4 father-in-law

and independent witness PW6. They are at Exhibits 34 and 38

respectively.



18.   PW4 Father-in-law deposed about receiving oral dying

declaration from deceased about accused no.1 pouring kerosene and

accused no.2 igniting her and she being taken to hospital in a jeep.

While under cross, he is asked about the geographical location of the

house, its surrounding, set up in the house, neighbourhood and

position of their houses, distance between his house and house of his

sister. He also answered that after the incident when he reached the

house, at that time 20 to 25 persons had gathered in front of their

house and prior to they reaching, fire on the person of deceased to be

already doused. He admitted that, deceased laid in the house of

Sakharam Kamble and he also suffered burns. He denied taking

deceased to PHC of Talkhed by ambulance. He answered that at the

time of admission in Civil Hospital, Nikita was conscious. Rest all

suggestions are denied.
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19.   PW6 seems to be acquaintance of both, accused and deceased,

and he deposed that, incident took place at 7.00 p.m. in the house of

deceased. On the day of incident, along with parents of deceased, he

went to Talkhed to take Nita and there, accused no.1 telling him that

deceased was indulging in black magic and on such count accused

no.1 opposed taking her and so he himself and parents of deceased

left the house to return back to their village but immediately there

was quarrel between deceased and accused persons and shortly

thereafter they heard shouting from the house of deceased and so

they returned and when asked, she gave oral dying declaration that

accused no.1 poured kerosene and his sister set her on fire.



      Above witness is also subjected to cross wherein he admitted

that father of deceased was his distant relative. He is asked at what

spot he heard shouting. He answered that when they returned back to

her house, accused persons and other adjacent householders had

gathered there. Omission is brought in his cross to the extent of

incident taking place at 7.00 p.m., accused no.1 informing him about

deceased doing black magic and burning clothes, after they leaving

the house, quarrel taking place between accused and deceased and he

hearing shouts. Rest is all denial.
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20.      Therefore, here, there is oral evidence of father-in-law as well

as an acquaintance and his distant relative. They both deposed about

the oral dying declaration received by them. They both are

consistently stating about hearing from deceased that accused no.1

poured kerosene and accused no.2 ignited her. Nothing damaging is

brought in the testimony of PW4 father-in-law, though some

omissions are brought in the cross of PW6. However, his testimony on

the point of receiving oral dying declaration has remained unshaken.



21.      Admittedly, cause of death is “shock due to 85-90% superficial

to deep burns”. There is no dispute to this extent. The occurrence

seems to have taken place all of a sudden and both accused did not

carry fuel when they entered the house of victim. The kerosene

available in the house of victim was said to be put to use. Therefore,

occurrence is in the rage of anger and sudden, after quarrel and

abuse. Hence, offence of culpable homicide not amounting to murder

would be attracted and is rightly held and dealt by the learned trial

court.



22.      Learned counsel for the appellants also emphasized that

deceased was initially taken to Talkhed and admitted to Primary

Health Center but no dying declaration was recorded there. That,
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defence witnesses, who are medical experts of said hospital, have

been examined to that extent. He would submit that, subsequently,

victim was taken to Beed, where her dying declaration was shown to

be recorded but the same could be tutored.



23.   Indeed, immediately after the occurrence, victim was taken to

Talkhed Rural Hospital, but there is nothing on record to show that

she was admitted there. Rather, she seems to be referred to higher

center at Beed, her condition being serious. Therefore, when she was

not admitted at Talkhed Rural Hospital, there was no question of

recording her dying declaration. On her admission at Civil Hospital

Beed, two authorities i.e. Police Head Constable and Nayab Tahsildar

recorded dying declarations. Both witnesses speak about approaching

In-charge Medical Officer and requesting for examination to ascertain

fitness to give statement. Name of the Medical Expert Dr. Raut is also

stated by PW7. Only on due satisfaction, as stated above, dying

declarations seem to have been recorded. Therefore, mere failure to

record dying declaration at Talkhed is no good ground to cast doubt

on prosecution story, more particularly on the point of dying

declaration.
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24.   Yet another ground raised in appeal is that, witness namely

Sakharam Kamble, who allegedly also suffered burns, is not examined

by prosecution for the best reasons known to it. Indeed, it has come in

the cross of PW8 Investigating Officer and PW4 father-in-law about

Sakharam Kamble also suffering burns, but merely because there is

failure to examine this witness, the trustworthy, reliable dying

declarations and evidence of PW4 would not get eclipsed.



25.   Learned counsel vociferously and vehemently submitted that, in

the hospital papers i.e. MLC, occurrence was reported as accidental,

and therefore, there was no episode of burning or setting to fire, as

alleged by prosecution. Though there is communication from Police

Station Beed, regarding admission of victim due to accidental burn, it

was the mere information, but its source is not known. Resultantly,

only on the strength of said document, it cannot be said that

occurrence was not of setting ablaze and that, it was accidental. There

are two consistent dying declarations attributing role to both accused.

Hence even the said ground has no force.



26.   To sum up, here, on the strength of consistent dying

declarations as well as oral evidence, prosecution has indeed proved

the charges. Learned trial court correctly appreciated the available
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evidence in correct spirit, applied the settled law and then rendered

the judgment by accepting the case of prosecution on the point of

offence under Sections 452 and 304 Part-II of IPC as proved beyond

reasonable doubt. There is no infirmity or illegality in the findings

and conclusion so as to interfere. Hence, the following order :


                                ORDER

                  The Criminal Appeal is dismissed.



                                          [ABHAY S. WAGHWASE, J.]



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