DNYANESHWAR BHAGWAN GADDIME AND ANOTHERversusTHE STATE OF MAHARASHTRA

2026:BHC-AUG:20898-DB


                                               {1}                      Appeal-2-2023

                         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                                    BENCH AT AURANGABAD

                                 CRIMINAL APPEAL NO. 2 OF 2023

              1.    Dnyaneshwar Bhagwan Gaddime
                    Age- 35 years, Occupation- Labour,
                    R/o. Talikhed, Tq. Nilanga,
                    Dist. Latur.

              2.    Bhagwan Vyankat Gaddime
                    Age- 70 years, Occupation- Agriculturist,
                    R/o. Talikhed Tq. Nilanga,
                    Dist. Latur                                     ...APPELLANTS

                          VERSUS

                    The State Of Maharashtra                        ...RESPONDENT
                                                 ...
              Mr. S.J. Salunke, Advocate for the appellants
              Mr. S.R. Wakle, APP for State
                                               .......

                                     CORAM : NITIN B. SURYAWANSHI AND
                                               VAISHALI PATIL JADHAV, JJ.


                                        DATE : 08th APRIL, 2026

              JUDGMENT: [Per Nitin B. Suryawanshi, J.]

              1.    Appellants are convicted by learned Additional Sessions Judge,

              Nilanga, Dist. Latur under Section 302 and 498-A of Indian Penal Code

              in Sessions Case No. 21 of 2017 by judgment and order dated

              22.11.2022 and sentenced to suffer rigorous imprisonment for life. By

              this appeal, appellants challenge their conviction.
                                 {2}                      Appeal-2-2023

2.   The prosecution case in short is that;

     Deceased Mahadevi married with accused/Appellant No. 1 prior

to more than 7 years. Initially, they were residing jointly with in-laws

i.e. Accused No. 2- Bhagwan Gaddime and acquitted accused No. 3

Wandabai Gaddime. Accused No. 1 was having vices of consuming

liquor and used to ill treat her and demand money for liquor. On

29.04.2017 at about 5.30 a.m., accused No. 1 went to labour work in

the morning and at 6.00 p.m., he came home under the influence of

liquor and asked the deceased for money. He started abusing and

assaulting her. Her in-laws accused No. 2 and 3 also came there and

started abusing her. Accused No. 1 then took kerosene can and poured

kerosene on her person and accused No. 2- father-in-law threw lamp

on her person and set her ablaze. Thereafter, they went away.

Deceased poured water on her person and extinguished the fire. By

that time, neighbors came and they informed her father. Her father

and relatives took her to the hospital. However, while taking treatment

on 10.05.2017 Mahadevi expired due to burn injuries.


3.   While the deceased was admitted in the hospital PW-6 PSI Sneha

Pimparkhede,    recorded   her   dying   declaration   (Exhibit-65)   on

30.04.2017, which was treated as FIR. Accordingly, on 01.05.2017

Crime No. 114 of 2017 was registered against three accused persons
                               {3}                       Appeal-2-2023

for offences punishable under Sections 307, 323, 504 read with 34 of

Indian Penal Code.


4.   The second dying declaration (Exhibit-95) was recorded by PW-8

Naib Tahsildar Shivaji Palepad. After the death of Mahadevi Section

302 was added in the crime. On completion of investigation, charge

sheet was filed and the case was committed to the Sessions Court. All

the accused were charged under Section 302, 498-A, 323, 504 r/w 34

of IPC. In support its case prosecution has examined 12 witnesses.

Though, parents, close relatives and neighbors of the deceased did not

support the prosecution case, learned Trial Judge, by relying on dying

declarations convicted accused No. 1 and 2 and acquitted accused No.

3. Hence, the appeal.


5.   Heard learned advocate for the accused and learned APP for the

State.


6.   Learned advocate for the accused assailed the impugned

judgment and order of conviction submitting that there is delay of 18

hours in recording the first dying declaration. Both the dying

declarations are not reliable and they are result of tutoring and

prompting. The dying declarations are not recorded in the words of the

deceased. In support of said submission he relied on Imran Bashir
                                      {4}                       Appeal-2-2023

Pathan Vs. The State of Maharashtra 1 and Kailash Pandurang

Yedmewar Vs. State of Maharashtra2. He submitted that though palms

and fingers of deceased were intact, yet the great toe impression of

the left foot was taken on both the dying declarations. In the second

dying declaration there was no endorsement that it was read over to

the deceased and she admitted it to be correct, which is a mandatory

requirement in view of decision in Paikuji S/o. Shankar Ataram Vs.

State of Maharashtra3.


7.      Further submission is that the incident has taken place on

29.04.2017        at    6.00   p.m.   whereas   the   accused   was   arrested

02.05.2017 at 21.19 hrs. Though, clothes of accused No. 1 were seized

after four days, still according to the prosecution, there was smell of

kerosene to the clothes of accused No. 1, which is not believable. The

articles were not seized while conducting panchnama. In view of

decision in Sanjay Devaji Ramteke Vs. State of Maharashtra4, said

panchnama cannot be relied upon. He further submitted that adverse

inference needs to be drawn as the person who recorded the MLC was

not examined and the MLC is not exhibited. According to him,

deliberately the prosecution has suppressed the medical documents as


1    1998 Bom.C.R. (Cri) 556
2    2017 (1) ABR (CRI) 19
3    2012 ALL MR (Cri) 2453
4    AIROnline 2020 Bom 239
                                   {5}                      Appeal-2-2023

no history was written in the same. In the MLC letter the role of setting

the deceased on fire is attributed only to accused No. 1. Therefore,

according to him, the same is inconsistent with the two dying

declarations brought on record by the prosecution. He submitted that

though the prosecution has collected medical documents during the

investigation, they were not exhibited during the trial, still those can

be relied upon in view of decision in Satish Sushilkumar Shukla Vs.

State of Maharashtra5. Considering the inconsistencies in the oral and

written dying declaration the benefit needs to be given to the accused.

In support of this submission he relied on Subhash Ratan Chavan &

Another Vs. State of Maharashtra6.


8.       Per contra, learned APP supported the impugned judgment and

order of conviction. He submitted that the prosecution in support of its

case has examined 12 witnesses and though PW2, PW3, PW4, PW5

and PW7 i.e. relatives and neighbors of the deceased have turned

hostile, the Trial Court is justified in convicting the accused by relying

on two dying declarations, which are consistent on the point of

happening of incident and role attributed to both the accused. He

submitted that in the panchnama in clause No. 12 it is specifically

typed that the articles were sealed and the pancha’s have not stated it,


5    2018 (2) ABR (Cri) 927
6    2016 (2) Bom.C.R. (Cri) 412
                                {6}                       Appeal-2-2023

the investigating officer has stated it in the evidence. Even in the

Chemical Analyzer’s report it is mentioned that two sealed parcels

were received to forensic lab. According to him, since the dorsum

aspect of the hand was burnt, it was not possible to obtain thumb

impression of the deceased and therefore, the great toe impression of

the left foot was rightly taken on both the dying declarations. He

submitted that the doctor who has witnessed the dying declaration has

certified the fitness of the deceased and therefore, the prosecution has

proved both the dying declarations and conviction of the accused is

sustainable on the basis of the dying declarations. He further

submitted that CA reports confirm the presence of kerosene on the

clothes of accused No. 1. According to him, the conduct of the accused

is also required to be taken into consideration as accused did not admit

the deceased in the hospital and her parents have admitted her. By

relying on Madan alias Madhu Patekar Vs. State of Maharashtra 7, Gopal

Vs. State of Karnataka8 and Vishnu Nagesh Malpathak Vs. State of

Bombay9 he submitted that conviction can be based even on the sole

dying declaration of the deceased. He therefore submitted that there is

no merit in the appeal and same deserves to be dismissed.


9.      With the assistance of learned advocate for the accused and

7    (2019) 13 SCC 464
8    (2011) 14 SCC 396
9    (1952) 1 SCC 346
                                 {7}                       Appeal-2-2023

learned APP we have perused the record.


10.   It is well settled in catena of decisions of the Apex Court as well

as of this Court that, before basing conviction solely on the dying

declaration, Court must come to a conclusion that dying declaration is

trustworthy, reliable and one which inspires confidence. Probability of

any doubt regarding mental fitness of dying declarant has to be

considered in the facts of each case.


11.   The Trial Court has convicted the accused by relying on two

dying declarations Exhibit-65 and Exhibit-95. The fist dying declaration

Exhibit-65 was recorded by PW6 PSI Sneha Pimparkhede after 18

hours of the admission of Mahadevi in the hospital. The prosecution

has not brought MLC letters on record. PW6 has deposed that on

30.04.2017 on receipt of letter Exhibit-63 from her superior, for

recording dying declaration of the deceased at Civil Hospital, Latur, she

went to burn ward No. 20 room No. 11 and called the doctor on duty.

The relatives who were staying near the patient were asked to leave

that room. The doctor was asked about the fitness of the patient vide

letter Exhibit-64. On examination, doctor put endorsement over letter

and the dying declaration. The deceased told her name and also

disclosed that she was residing with family along with her husband and

two children. She was residing separately from her in-laws since last
                                {8}                      Appeal-2-2023

one year. Her husband was addicted to liquor and to satisfy the said

addiction he used to ask money. On the date of incident, Accused No. 1

came and asked her money, for liquor. Her in-laws also came to the

house and abused her. In between, Accused No. 1 poured kerosene on

her and Accused No. 2 threw burning lamp on her person and she was

set ablaze. All the accused then went away from the spot. She tried to

pour water on her person and extinguish the fire. She called her

nieghbours. Neighbors have contacted her parents and then parents

took her to the hospital. She also said that accused be punished as per

law, for setting her ablaze. The statement was read over to the

deceased. She agreed to it and her left feet toe impression was taken.

The doctor’s endorsement was also taken. PW6 also put her signature

on the dying declaration Exhibit-65. Again, she issued one letter

Exhibit-66 to the Executive Magistrate, for recording the dying

declaration.


12.   In the cross examination, she deposed that, MLC number is.

224/2017. On receipt of letter by hospital police chowky she went

there with her writer. The handwriting on the dying declaration is of

her writer. There are one Head Constable and one Naik in the police

chowky of the hospital. Generally, police chowky officer used to record

the statement. She went there to record the dying declaration as the
                                 {9}                        Appeal-2-2023

deceased was female. The incident took place in summer days and

sunset used to be at 7.00 pm in those days. She did not ask whether

the electricity facility is available in the house or not. She did not ask

as to why lamp was put on. She found the deceased under stress as

her husband was addicted to liquor. She tried to douse fire within the

house itself, by that time, none have seen her. She denied that hands

of the deceased were burned up to the wrist. She denied that her

fingers were intact. She admitted that she did not certify specifically

the endorsement of reading over the dying declaration to the

deceased.


13.   On perusal of dying declaration Exhibit-65 it is clear that the

same is not recorded in the exact words of the deceased, but it is

recorded as per the dictation given by PW6 to the writer. The deceased

who had sustained 46% burn injuries is not expected to state ward

number and room number in which she was admitted. She had no

occasion to know these things.

      In similar facts in Kailash Yedemewar (supra) this Court has held

that, “it would also be relevant to mention that in the said statement,

it has been mentioned by Shubhangi that she had suffered ninety-five

per cent burns and that her neighbours and relatives had brought her

to Medical College and she was undergoing treatment in Ward No. 4,
                                {10}                       Appeal-2-2023

Bed No. 31 on 29th March, 2013. This narration appears to be highly

improbable, as a patient of ninety-five burns cannot be expected to

give the details of the ward number or bed number where she is

undergoing treatment.”


14.   In Imam Bashir Pathan (supra) this Court held:

           “6. There are some more circumstances which
           render impugned dying declaration as doubtful.
           We find that the language of Exh. 17 and Exh.33
           is similar in many respects. As was directed by
           the Supreme Court the dying declaration should
           have been in the question answer form or at
           least it should represent the manner in which
           the incident was narrated by the deponent. In
           the dying declaration the very first sentence is
           indicative of the normal practice of the Police to
           record a statement U/s 162. The sentence is (In
           Marathi Script)     Me Samaksha Davakhanyat
           Aaushad Upchar Ghet Asatana Javab Lihun Dete
           Ki ..." Many identical sentences find place in
           both these documents. Since it is not reduced in
           question-answer form it becomes doubtful as to
           what were exact words which deponent uttered.
           It has come in evidence that one Shamrao
           Nagargoje, police head-constable who is
           examined as defence witness No.1 had recorded
           dying declaration which is at Exh.50. Shafiya
           had stated in this dying declaration that she was
           fast asleep and woke up finding that her Sari
           has caught fire. Probable reason given by her is
           accidental fall of a kerosene lamp. This dying
           declaration has an endorsement by the medical
           Officer of the Primary Health Center, Ashti that
           while recording her statement, Shaifya was
                                {11}                      Appeal-2-2023

           medically fit to depose. In the light of this
           statement coupled with the fact that the alleged
           dying declaration Exh. 33 was recorded 24
           hours after the admission of the Shafiya in
           Ahmednagar       Hospital   impugned       dying
           declaration Exh. 33 becomes doubtful.”


15.   The aforesaid observations are squarely applicable to the facts of

the present case. Fact remains that writer of PW6 is not examined to

prove the dying declaration. Therefore, we are of the view that dying

declaration Exhibit-65 cannot be relied upon to sustain the conviction

of the accused.


16.   Coming to the second dying declaration Exhibit-95, recorded by

PW8 Naib Tahsildar, on the same day i.e. on 30.04.2017 at 9.45 pm, it

is clear that after recording this dying declaration, there is no

endorsement stating that the dying declaration was read over to the

deceased and she confirmed it to be correctly recorded.

      In Paikuji Ataram (supra) this Court has held that, when the

statement was not read over to the deceased and not admitted by the

deceased to be correct and recorded according to her say, such dying

declaration cannot be a foundation for sustaining the conviction.


17.   There is one more reason for disbelieving dying declarations

Exhibit-65 and Exhibit-95 i.e. in letter dated 30.04.2017 addressed by
                                  {12}                        Appeal-2-2023

Police Station Officer Gandhi Chowk Police Station to Police Inspector

informing him to record the statement of deceased it is stated that “on

inquiry with the patient, she told that, her husband poured kerosene

on her and set her on fire (vkEgh lnj tGhr efgysdMs tkoqu ?kVusckcr

fopkjiql dsyh vlrk rh frps uoÚ;kus vaxkoj jkWdsy Vkdqu tkGy s).” The entry of

the said letter is taken in the station diary at 18.52 hrs. Said letter,

therefore, attributes role of setting the deceased on fire only to her

husband/accused No. 1. Thus, there is inconsistency in the written

dying declaration and oral dying declaration of the deceased.

       It is well settled that if there is inconsistency in two dying

declarations, the benefit has to be given to the accused [Vide Suresh

Shrirang Mandawgane Vs. State of Maharashtra10].


18.    It is necessary to note here that, PW2-father and PW3- cousin

brother of the deceased have deposed that deceased set herself on fire

due to quarrel with accused No. 1 because of his habit of consuming

liquor. It is a matter of record that PW 2 and PW 3 had taken deceased

to the hospital. Therefore, though they are declared hostile, this part

of evidence, which supports the case of the accused and creates doubt

about the prosecution case can be taken into consideration. As per the

medical record, deceased was admitted in the hospital by her relatives

on 30.04.2017 at about 1.15 a.m. The history of burns is recorded in
10 2010 ALLMR (Cri) 147
                                {13}                        Appeal-2-2023

the case papers on 29.04.2017 at 7.30 p.m. If really the deceased was

set ablaze by the accused, then in the history same would have been

mentioned by her maternal relatives. This creates serious doubt about

the prosecution version that accused are responsible for the burn

injuries of the deceased.


19.    PW 4 and PW 5 neighbors of the deceased had immediately

reached the spot of incident and informed about the same to PW2.

However, they have not supported the prosecution case. Hence, the

dying declarations cannot be made sole basis of conviction in absence

of corroboration. Fact remains that there is absolutely no evidence on

record to sustain the conviction of accused under 498-A of IPC.


20.    All the aforementioned serious flaws in the present case are

ignored by the Trial Court while convicting the accused. The Trial Court

has failed to appreciate the evidence by applying principles of

appreciation of evidence of dying declarations and thereby committed

an error in convicting the accused. In the result, following order:

                                 ORDER
(i)    Criminal Appeal is allowed.

(ii)   Impugned Judgment and Order of Conviction dated 22.11.2022
       passed by Additional Sessions Judge, Nilanga, Dist. Latur in
       Sessions Case No. 21 of 2017 thereby convicting the Appellants
       under section 302 and 498A of the Indian Penal Code, is hereby
                                       {14}                    Appeal-2-2023

          quashed and set aside.

(iii)     Appellants be released forthwith, if not required in any other
          case.

(iv)      Appellants shall execute bond in the sum of Rs. 15,000/- each
          under section 481 of the Bharatiya Nagarik Suraksha Sanhita,
          2023.

(v)       Fine amount, if paid by the Appellants, be refunded to them after
          the Appeal period is over.


(vi)     Muddemal property be dealt with in accordance with law.




(VAISHALI PATIL JADHAV, J.)                   (NITIN B. SURYAWANSHI, J.)




Bhagyawant Punde