S.P. Kukday, J.
1. Appellant, his mother Gangubai (accused no. 2), brother Balasaheb (accused No. 3) and sister-in-law Vandana (accused No. 4) were tried for the offences punishable under Section 302, 304-B, 498-A read with Section 34 of the Indian Penal Code (in short 'the IPC'). Appellant is convicted of these offences. For the first offence he is sentenced to suffer imprisonment for life and to pay a fine of Rs. 1000/-. For the second offence, appellant is sentenced to suffer rigorous imprisonment for 10 years and, for the third offence, he is sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs. 500/-. Sentence of fine carries default stipulation for non-payment. Accused Nos. 2, 3 and 4 are acquitted of all the offences.
2. Facts of the prosecution case lie in a narrow compass. Rekha (since deceased) was daughter of Maroti Madhaorao Kadam of village Kohali, Paluda Hadgaon. She married appellant who is native of village Hastara, in the year 1998. At the time of marriage, her father had given Rs. 40,000-/ and other articles as per agreement between the parties. For first two years, the deceased was nicely treated. During this period, Vaishnavi was born. About two years prior to the incident, appellant and other accused started ill-treating the deceased on the pretext that gold ring weighing five tolas promised to be given at the time of the marriage, was not given by her father. At the time of her visits to the parental house, deceased used to inform members of her family, uncle Jambuwantrao (PW 4), cousin grandfather Krishnarao (PW 1) and other near acquaintances about her plight. Her parents, however, maintained that they have given all the articles at the time of the marriage as per nuptial agreement.
3. On 21st May 2003 at about 5.00 o clock in the morning while the deceased was in the sitting room, on the instigation of accused Nos. 2, 3 and 4, the appellant poured kerosene over person of the deceased and set her on fire as she did not bring gold ring from her parents. The incident was witnessed by neighbours Savita and her husband Shivaji Solunke. The fire was extinguished by neighbours while the deceased was in the kitchen. After the incident accused No. 3 conveyed information regarding the episode to parents of the deceased. Thereafter, all the members of the family left the house.
4. On receipt of the information, parents of the deceased, her uncle Jambuwantrao (PW 4), cousin grandfather Krishnarao (PW 1) and some others came to the matrimonial house of the deceased at Hadgoan. The deceased was alone at the house. In reply to the queries, the deceased informed her relatives from parental side that on the instigation of her mother-in-law Gangubai, brother-in-law Balasaheb and sister-in-law Vandana, the appellant poured kerosene on her person at about 5.00 a.m. on that day and set on fire as she did not bring gold ring.
5. The deceased was then taken to Rural Hospital at Hadgaon at 10.20 a.m. Medical Officer Dr. Narayan Lokade (PW 6) found that the patient had suffered 90% burns. After giving first aid to the patient. PW 6 conveyed the information regarding admission of the burns patient to Hadgaon Police Station. In response. Head Constable Shrirame (since deceased) came to the hospital and recorded complaint of the deceased (Exh. 32) in presence of Rajaram Solanke (DW 1), maternal uncle of the deceased, after verifying from the Medical Officer that the deceased is in a fit mental state to make a statement. On the basis of this dying declaration offence under Section 307 and 498-A of the IPC came to be registered. Head Constable then attached burnt polyester saree and blouse of the deceased under Panchnama (Exh. 54). P.S.O. of Hadgaon Police Station then sent letter (Exh. 30) to Executive Magistrate Aruna Sangewar (PW 5) requesting her to record dying declaration of the deceased. In response, PW 5 went to the hospital. On examination of the patient, PW 6 certified at 11.55 a.m. (Exh. 31) that she is fit to make a coherent statement. PW 5 then recorded dying declaration (Exh. 32) in question-and-answer form. The patient was (hen referred to Guru Gobindsingh Hospital. Nanded, for further treatment.
6. On 9th June 2003, the deceased expired at about 6.00 a.m. Intimation of her death was given to Police outpost at the Hospital. In response. ASI Mirza Younus Beg (PW 3) of Vazirabad Police Station held in quest (Exh. 26) over the dead body and sent it for post-mortem. Dr. Md. Nusarat per formed the post-mortem, prepared post mortem report (Exh. 43) and opined that the deceased died on account of septicaemia due to 70% burns. Relevant Papers including the Inquest Panchnama and the post-mortem report were sent to Hadgaon Police Station by PW 3.
7. After registration of the offence, PS1 Deepak Waghmare took over the investigation. He then visited house of the appellant at village Hastara. The fire was extinguished while the deceased was in the kitchen. From the kitchen. Investigating officer attached bottle smelling of kerosene under Panchnama of the scene of occurrence (Exh. 53). Appellant and his mother Gangubai were arrested on 22nd May, 2003. Accused Nos. 3 and 4 were arrested on 2nd June, 2003. Articles attached were sent to the Forensic Laboratory. Report of the Chemical Analyser (Exh. 63) disclosed that partially burnt saree blouse and bottle tested positive for kerosene. On completion of the investigation, PW 7 filed charge sheet against all the accused.
8. In support of its case, the prosecution examined seven witnesses. Krishnarao Sambhajirao Kadam (PW 1) is cousin grandfather of the deceased. Jambuwantrao Madhavrao Kadam (PW 4) is her paternal uncle. Both these witnesses have stated that after two years of the marriage, the accused started ill-treating the deceased as their demand for five tola gold ring was not fulfilled by her father Marotrao. At the time of Panchmi, the deceased was sent to her parental house as the demand was not met, but her husband had subsequently taken her back. On the fateful day, telephonic message was received by father of the deceased. Both of them and some others had been to Hastara with the parents of the deceased. They found that the deceased was alone at the house. She started weeping on their arrival. When the enquiries were made, the deceased informed them that her husband poured kerosene over her person at 5.00 o'clock in the morning at the instigation of accused Nos. 2, 3 and 4. They took her to Hadgaon Rural Hospital. From there she was taken to the hospital at Nanded. No damaging admission could be elicited during their cross-examination.
9. Raju Tukaram Kadam is panch to inquest Panchnama (Exh. 19) prepared by PW 3. The Panchnama shows that the deceased had sustained 70% burns.
10. Mrs. Aruna Sangewar (PW 5) is the Executive Magistrate. On receipt of Request Letter from Hadgaon Police Station. She went to the hospital and requested PW 6 to certify whether the patient is in a fit mental state to make a coherent statement. After PW 6 certified that the deceased can make a statement. She herself verified this fact by putting questions to the deceased and recorded statement of the deceased at 11.55 a.m. in questions and answers form. The deceased stated that on that day at about 5.00 a.m. her husband set her on fire at the instigation of accused Nos. 2, 3 and 4 as she did not bring gold ring from her parents. During the cross-examination of this witness, it has been brought on record that she did not read over the statement to the deceased.
11. Dr. Narayan Lokade was Medical Officer at Hadgaon Rural Hospital at the relevant time. On 21st May, 2003 the deceased was admitted to the Hospital at 10.20 a.m. He found that she had sustained 90% burns. After starting the treatment. PW 6 informed Hadgaon Police Station about the admission of the deceased. He made endorsement (Exh. 42) on the FIR (Exh. 52) recorded by H.C. Shrirame and issued a certificate that the patient was conscious during recording of dying declaration by PW 5. He then sent the deceased to Hospital at Nanded for further treatment. During the cross examination of this witness, it has been brought on record that he did not certify that the patient is fit to make a statement while making an endorsement on FIR (Exh. 52) nor did he mention time of making endorsement. It is shown that he did not mention in certificate (Exh. 31) that the patient was examined at the beginning of the dying declaration (Exh. 32).
12. PSI Waghmare (PW 7) is the Investigating officer. This witness is familiar with the handwriting of H.C. Shrirame and has proved FIR (Exh. 52) and seizure memo (Exh. 53) prepared by the Head Constable. The Investigating Officer has narrated the details of the investigation. His cross examination is inconsequential.
13. Rajaram Dhodiba Solanke (DW 1) stated that the deceased was happily living with her husband. On receipt of the information regarding the incident, he went to the matrimonial house of the deceased. He was informed by the neighbours that the husband of the deceased had been to village Sapta for attending marriage of his relative. The deceased told him that she sustained burns while preparing tea. At Hadgaon Hospital, Police Officer made an effort to record statement of the deceased but she could not make any statement as she was unconscious. During the cross-examination the witness was confronted with his endorsement on FIR (Exh. 52). He could not give satisfactory explanation why he did not raise an objection while making the endorsement that the statement was recorded in his presence.
14. At the trial, the appellant claimed that they had been out of station for attending marriage ceremony of their relatives and adopted defence of alibi. To establish the defence. Rajaram Dhodiba Solanke (DW 1) maternal uncle of the deceased is examined.
15. On appreciation of the evidence, the trial Judge found that the evidence of PW 1 and 4 on the point of ill-treatment of the deceased and the oral dying declaration is worthy of belief. He further found that the dying declaration recorded by Head Constable Shrirame and PW 5 are consistent and deserve credence. In the face of the endorsement on FIR (Exh. 52), learned trial Judge did not believe evidence of defence witness. He further found that the evidence of DW 1 does not prove alibi of the appellant. Learned Magistrate observed that accused Nos. 2 to 4 might have been living at the house near the Bus Stand. In any event, their presence is not vouched for by the deceased. In conformity with these findings, learned trial Judge acquitted accused Nos. 2 to 4 of a]l the offences and convicted the appellant and sentenced him as stated earlier, as his complicity in commission of homicide is established by the evidence of the prosecution witnesses.
16. The State has not preferred appeal against the acquittal of accused Nos. 2, 3 and 4.
17. In support of the appeal, learned Counsel Shri V.B. Nayak, has mainly relied on the fact that the dying declarations recorded by Head Constable Shrirame and PW 5 were not read over to the victim. Referring to the decisions of the Division Bench of this Court in Shivaji Tukaram Padukhe v. State of Maharashtra 2004 All MR (Cri) 3220 and State of Maharashtra v. Manohar Mukindrao Tayade, it is argued that these two dying declarations will have to be discarded. Pursuing this thread of arguments, learned Counsel contend that once these dying declarations are discarded, there is no tangible evidence to establish complicity of the appellant in the commission of the crime.
18. Per contra, learned APP Shri N.H. Borade, would argue that the overwhelming evidence of the prosecution witnesses does prove complicity of the appellant in the commission of the crime. The trial Judge has considered all the pros and cons and the law applicable to the prosecution of the accused based on the dying declarations, thus, no interference with the order of conviction and sentence passed by the trial Judge is warranted.
19. The present prosecution is essentially based on the dying declaration of the deceased. Principles governing the evidentiary value of the dying declarations, are by now well-settled. The dying declarations are an exception to the hearsay rule and are admissible in evidence under Section 32(1) of the Evidence Act. Under the Indian law, it is not necessary that the declarant must be under expectation of death at the time of making a statement as to the cause of his death or as to the transaction which resulted in his death. The statement becomes admissible in evidence if it satisfies two conditions mentioned in Section 32(1) of the Evidence Act. The evidentiary value of the statement depends on the circumstances of each case. No particular form or procedure is prescribed for recording dying declaration. Nor it is always required to be recorded by a Magistrate. Though it is advisable to get the fitness of the declarant certified from the medical expert, in appropriate cases, satisfaction of the person recording the statement regarding the state of mind of the deceased would be sufficient to hold that the deceased was in a position to make a coherent statement. In a case solely depending on the dying declaration, the Court must exercise due care and caution to ensure genuineness of the dying declaration, keeping in mind that the accused had no opportunity to test veracity of the statement by the cross-examination. However, once it is found that the dying declaration is voluntary and not tainted by tutoring, there is no impediment in convicting the accused on the basis of even an uncorroborated statement if it satisfies the conscious of the Court regarding its truthfulness. The law governing this topic is expounded in Muthu Kutty v. State reported in : (2005)9SCC113 . In para 15, it is observed:
15. Though dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be, this is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring, or promoting, or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It can not be laid down as an absolute rule of law that the dying declaration can not form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
20. Referring to Laxman v. State of Maharashtra : 2002CriLJ4095 and Rambai v. State of Chhattisgarh : 2002CriLJ4712 it is observed in para 18 of the report:
Further, if the person recording the dying declaration is satisfied that the declarant is in a fit medical condition to make a dying declaration then such dying declaration will not be invalid solely on the ground that the doctor has not certified as to the condition of the declarant to make the dying declaration.
21. There is no particular form in which the dying declaration should be recorded. The dying declaration - oral as well as writ ten, are admissible in evidence. If the dying declaration satisfies conscious of the Court as to its truthfulness, conviction can be founded on such oral or written dying declaration. This aspect is highlighted in Ramawati Devi v. State of Bihar : 1983CriLJ221 . In para 7 of the report Their Lordships observed:
A statement, written or oral, made by a person who is dead as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, becomes admissible under Section 32 of the Evidence Act. Such statement made by the deceased is commonly termed as dying declaration. There is no requirement of law that such a statement must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case. In the instant case, the dying declaration has been properly proved.
22. In the present case, learned Counsel for the appellant has relied on two decisions of this Court to contend that the dying declaration can not be taken into consideration if it is not read over to the declarant for confirmation. Apart from the two decisions. Division Bench of this Court in Manohar Dadarao Landge v. State of Maharashtra 2000 (2) Mah LJ 3 : (5) LJ 50 has made similar observations. However, it may be noted that in these cases other evidence adduced by the prosecution was deficient. The dying declaration was disbelieved not merely on the ground that it was not read over to the declarant. Be that, as it may : in the present case, apart from the written dying declarations, oral dying declarations are also proved by the prosecution. Therefore, it is not necessary to elaborate on this aspect.
23. The prosecution has examined PW 1 and PW 4 on the point of oral dying declaration as well as to establish the motive for the commission of the offence. PW 1 is Sarpanch of the village and is uncle of the father of the deceased. PW 4 is real paternal uncle of the deceased. Both of them are living in the same 'wada' with the father of the deceased and had accompanied him to the matrimonial house of the deceased on receipt of the information regarding the catastrophe. Both PW 1 and PW 4 have stated that the deceased was properly treated for the first two years and during this period Vaishnavi was born. Harassment of the deceased started two years prior to the incident as the demand of the appellant for gold ring was not satisfied by the father of the deceased. This evidence of PW 1 and PW 4 could not be dislodged during the searching cross examination of these witnesses. PW 1 has also narrated the fact that at the time of Panchami the deceased was sent to her paternal house as the demand for gold ring was not satisfied. On that occasion, the deceased resided at the parental house for about six months. The fact of desertion of the deceased is firmly established during the deceased is firmly established during the cross-examination as the attempt to prove contradiction on this point failed. In para 4 of the deposition of this witness, the trial Judge has specifically recorded that the fact of desertion is stated by the witness in his statement recorded under Section 161 of Cr.P.C. The omission is restricted only to the word Panchami. The fact that the deceased was deserted shortly before the incident and was sent back only on the assurance of the appellant that she would not be harassed, lends credence to the evidence of PW 1 and PW 4 regarding ill-treatment of the deceased on the ground that demand for gold ring was not satisfied by her father. The fact that both these witnesses had been to the matrimonial house of the deceased with her father. On the fateful day and found that she was alone at the house is undisputed. Evidence of these prosecution witnesses regarding oral dying declaration has to be appreciated in this background.
24. PW 1 states that on reaching matrimonial house of the deceased they found her lying in one corner of the room with extensive burn injuries. On making enquiries, the deceased disclosed that at the instigation of accused Nos. 2, 3 and 4, the appellant poured kerosene on her person and set her on fire. After referring to the cause for harassment of the deceased, PW 4 has stated that on the day of the incident when they made inquiries with the deceased, she stated that on the instigation of her mother-in-law, brother-in-law and sister-in-law, her husband poured kerosene over her person and set her on fire. Wording of the oral dying declaration of the deceased given by both these witnesses is exactly the same. The version of the incident given by the deceased to her relatives is maintained by her throughout. On getting the intimation of the admission of the burn case from PW 6, Head Constable Shrirame of Hadgaon Police Station immediately went to the Hospital and recorded the FIR in presence of DW 1. It is apparent that FIR is recorded in presence of DW 1 as he was the only relative of the deceased sympathizing with the accused. DW 1 has eventually been examined as a defence witness and has stated that the deceased was unconscious while she was at Hadgaon Hospital. This evidence of DW 1 can not be accepted in the face of the evidence of the Medical officer and in view of the endorsement made by him on FIR (Exh. 52) in his own handwriting. Version of the incident given in the FIR and dying declaration (Exh. 32) recorded by the Executive Magistrate corroborates version of the incident given by the deceased in her oral dying declaration. Apart from the fact that after completion of recording dying declaration, Head Constable Shrirame and the Executive Magistrate have not confirmed correctness of the statement by reading it over to the deceased, no other flaw is noticed in the procedure followed by them. Both of them have been verified from the Medical Officer that the deceased was in a fit state of mind to make a coherent statement and have obtained his endorsement on the statement to this effect. The fact that the deceased was conscious and was fit to make statement is stated by PW 1 in no uncertain terms. If the version of the incident in all these statements is compared, it is manifest that PW 1 and PW 4 have reproduced exact words of the deceased. Considering the fact that soon before her death, the deceased was deserted for a period of two months, because the demand for gold ring was not satisfied and was sent back only when the appellant assured good treatment to the deceased, the version of the episode given in the dying declaration receives necessary corroboration. Therefore, there is no impediment in accepting evidence of PW 1 and PW 4 on the point of the motive as well as the oral dying declaration, as their evidence is consistent, cogent and has stood the test of rigorous cross examination.
25. At this stage, it would be appropriate to advert to the defence of alibi adopted by the appellant. The burden to establish alibi is on the appellant. The appellant has examined DW 1 to discharge this burden. As observed earlier, evidence of DW 1 that the deceased was unconscious while she was admitted to Rural Hospital at Hadgaon can not be believed in the face of evidence of the Medical officer and the Executive Magistrate who are undoubtedly independent witnesses. The endorsement of DW 1 on the FIR (Exh. 52) in his own handwriting that the statement of the deceased is recorded in his presence further falsifies his evidence that the deceased was unconscious while she was at Hadgaon hospital. Admittedly. DW 1 has no personal knowledge that the appellant was at village Sapta for attending the marriage of his relative. DW 1 has categorically admitted that he got this information from the neighbours of the appellant. No reliance can be placed on hearsay evidence in respect of the alibi. In the absence of cogent evidence to show that the appellant was at village Sapta at the time of the occurrence, it has to be held that the appellant has failed to establish alibi.
26. Considering the totality of the evidence, in our considered opinion, the prosecution has established that the appellant did set the deceased on fire with the requisite intention to cause her death, within seven years of his marriage with the deceased, as his demand for dowry was not satisfied by her parents. In this view of the matter, we do not find any fault with the findings recorded by the trial Judge that the appellant is guilty of the offences punishable under Section 302, 304-B and 498-A of the IPC. In the result, the appeal fails and is dismissed accordingly.