Anita Bholanath Wanjari vs State of Maharashtra Through P.S.O. Pachpaoli Police Station, Nagpur

SWAPNA JOSHI, J

Challenge in this Appeal is to the judgment and order dated 8th September 2009, delivered by learned Ad-hoc Additional Sessions Judge-2, Nagpur

in Sessions Trial No.58/2002, convicting the appellant for offence punishable under Section 302 of the Indian Penal Code and sentencing to suffer

imprisonment for life and to pay a fine of Rs. 1000/-, in default, to suffer R.I. for six months.

The prosecution version as unfolded during the trial can be summarized as under :

Deceased-Mangala tied nuptial knot with one Deepak Wanjari on 31.3.2001. Appellant-Anita is the wife of brother of Deepak. AppellantÂ

and deceased were residing in a joint family at Bhilgaon, Kamptee Road, Nagpur. It is the case of the prosecution that the appellant was not

happy with the marriage of Mangala with Deepak and, as such, she used to quarrel with Mangala over trifle matters. On the date of incidentÂ

i.e. 3.6.2001 at about 11.00 hrs when Mangala was sleeping as she was in ill-health, the appellant picked up a quarrel with her. The appellant

then poured kerosene on the person of Mangala and set her ablaze. Mangala started shouting. On hearing her shouts, her mother-in-law

Shantabai rushed to that place. She extinguished the fire by pouring water on the person of Mangala. Mangala was brought to Mayo Hospital,

Nagpur and was admitted. The concerned doctor from Mayo Hospital  reported the said fact to Pachpaoli Police Station,

Nagpur.

At the relevant time, ASI Pandurang Rangari (PW3) was attached to Pachpaoli Police Station. On 4.6.2001, he proceeded to Mayo

Hospital for recording the dying declaration of Mangala. He obtained permission of the doctor concerned for recording the same vide requisition

Exh.20. He then recorded the dying declaration of Mangala(Exh.37). On the basis of the said dying declaration, PW7 API-Surajmal BaghelÂ

registered the offence vide Cr.No. 263/2001. PW7 then visited the place of incident and recorded the spot panchnama (Exh.71). From the

place of incident, he took charge of the burnt pieces of clothes, plastic can and burnt pieces of blanket. On 5.6.2001, the Special Executive

Magistrate recorded the dying declaration of Mangala vide Exh.43. On 7.6.2001 while being medically treated, Mangala expired. PW9 PSI

Ramdas Parteki  recorded the inquest panchnama on the dead body of Mangala vide Exh.27.  He sent the dead body for autopsy.Â

The statements of the witnesses came to be recorded by the police. Since the police did not arrest the appellant and there was no progress in

the investigation, the father of deceased PW4-Panjabrao Bhende, filed a Writ Petition in this Court. As per the direction of this Court, the appellant

came to be arrested on 22.12.2001. Thereafter, the charge-sheet was filed in the Court of learned JMFC Nagpur. The case was committed to

the Court of Sessions. Charge was framed by learned Additional Sessions Judge. The appellant pleaded not guilty  and claimed to be

tried. The defence of the appellant was that as Mangala was suffering from epilepsy, she was dejected with her life and due to the said reason,

she committed suicide. On analysis of the evidence and after hearing both sides, the learned trial Judge convicted the appellant as aforesaid.

We have heard Mr. S.V. Manohar, learned senior counsel with Mr. Atharva Manohar, learned counsel for the appellant and Mr.J.Y.Ghurde,

learned Additional Public Prosecutor for the respondent-State. With their able assistance, we have carefully gone through the entire record and

proceedings of the case.

Learned senior counsel vehemently argued that the learned trial Judge has not assessed the evidence led by the prosecution in its right

perspective and has erroneously convicted the appellant. He contended that the case is solely based on three dying declarations out of

which the first dying declaration demonstrates a suicidal death whereas the remaining two dying declarations are totally inconsistent as to the

manner in which the incident had taken place. Similarly, there is no convincing and cogent evidence on record to show that while making both the

dying declarations, the deceased was in a fit mental and physical condition to make her statement. The learned senior counsel submitted that in the

circumstances, the appellant is entitled for acquittal since there is no convincing and cogent evidence on record to prove the guilt of the

appellant.

Per contra, Mr.J.Y.Ghurde, learned APP supported the impugned judgment and contended that so far as the first dying declaration is

concerned, since the deceased was accompanied by her mother-in-law Shantabai, her mother-in-law must have convinced her not to implicate

the appellant in the present crime, being a member of the family and, as such, Mangala must have stated that she tried to commit suicide. It is

submitted that the first dying declaration is therefore rightly rejected by the trial Court. On the point of inconsistent dying declaration, it is submitted

that on making enquiry with Mangala, she told about the demand of colour TV and fridge by the appellant and, thus, the said dyingÂ

declaration shows the involvement of the appellant. According to leaned APP, the prosecution has proved its case beyond reasonable doubt.

In order to bring home the guilt of the appellant, the prosecution has examined as many as nine witnesses. The relevant witnesses are PW1-

Madhukar Sakharkar, who is the panch witness on the point of spot panchnama; PW2-Vinayak Mankar, who is another panch on the point of

spot panchnama; PW3-Pandurang Rangari, ASI, PS Pachpaoli, who recorded the dying declaration of Mangala; PW4 -Panjabrao  Bhende ,

who is the father of the deceased;  PW5-Lahu Behende, who is the uncle of the deceased; PW6-Ramesh Sukhdeve is the Spl. Executive

Magistrate who recorded the second dying declaration of Mangala on 4.6.2001;  PW7-Surajmal Baghel, API, is the Investigating Officer;

PW8-Dr.Ashvinkumar Sapate is the doctor, who conducted the autopsy and PW9-Ramdas Partejki, PSI, is the Investigating Officer..

As far as the dying declaration is concerned, it is well-settled that conviction can be based on the sole dying declaration of the deceased if the

dying declaration is found to be consistent, coherent and made in a conscious state of mind. Time and again, the Hon’ble Apex Court has

laid down guidelines to follow while recording the dying declaration. It is expected that the Courts should be extremely careful when they deal with the

dying declaration as the maker thereof is not available for cross-examination which poses a great difficulty to the accused person. The

Court has to examine the dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in

a conscious state of mind and without being influenced by the relatives present or by the Investigating agency who may be interested in the success of

investigation or who may be negligent while recording the dying declaration. It is also well settled that when there are more than one dying

declarations, it should not be that the dying declaration which supports the prosecution case alone can be accepted while innocuous dying

declarations have to be rejected. While recording the dying declaration the Court has to see that, (i) the examination of the patient by the

doctor is conducted, before recording of his statement and a certificate is obtained from the Doctor that the person is in a sound mental state to

give statement; (ii) the presence of the doctor near the patient during recording of the statement; (iii) the relatives of the patient should not

be near the patient and if at all present should be removed from that place where the statement of the patient is being recorded so that the patient

should be in a position to make voluntary statement, free from any influence or any tutoring ; (iv)Â after recording the statement it should be read

over to that person and the contents thereof should be explained. There should be confirmation from that person that the statement is correctly

recorded and it has true sense. No such guidelines are followed in the instant case.

Keeping in mind the aforesaid guidelines, the dying declarations are to be scrutinized carefully. The prosecution case mainly hinges on

as many as three dying declarations. The first one is recorded by HC Mahadeo (not examined) on 3.6.2001. HC Mahadeo sent a requisition vide

Exh.49 to the Medical Officer making enquiry whether the patient is in a fit physical and mental condition to give her statement (Exh.78).Â

The said requisition was given at 12.45 hours. The Medical Officer made an endorsement that the patient is in a fit condition to give her

statement at 12.45 hours. Accordingly, statement of deceased was recorded by HC Mahadeo vide Exh.18.  In the said dyingÂ

declaration, Mangala stated that on 3.6.2001 at about 11.00 am, she  was at home. Her marriage was solemnized three months back.

She stated that since she was suffering from a disease of epilepsy from last 3 to 4 years, she was taking treatment of Dr. Pravin Nitnaware

at Pali Bhawan, Kamal Square, Nagpur. On 3.6.2001 at about 11.000 am, when she was at home, on being fed up with the disease, she herself poured

kerosene on her person and set herself on fire. She came outside crying. On hearing her shouts, her mother-in-law Shantabai rushed to the

spot and took inside the house. Mangala sat in the water tank. The fire was extinguished. She stated that she sustained burn injuries from head to

feet. Her mother-in-law and neighbours took her to Mayo Hospital for treatment. Thumb impression of left toe of Mangala was obtained on theÂ

said statement. The first dying declaration indicates that the deceased died a suicidal death.

Now coming to the second dying declaration (Exh.37) dated 4.6.2001 which was recorded by HC Pandurang Rangari (PW3), it appears

that while recording the second dying declaration no endorsement of the Medical Officer was obtained by the Head Constable indicating that

patient was physically and mentally fit to give her statement. There is absolutely no evidence on record to show that PW3-Rangari made anyÂ

enquiry with the Medical Officer with regard to mental and physical condition of Mangala. On perusal of Exh.37, it is noticed that for the first

time Mangala implicated the appellant in the alleged offence. Exh.37 shows that Mangala stated that on 3.6.2001 at about 11.00 am, she was at

home. Since she was not keeping good health, she was sleeping. She stated that she was suffering from epilepsy due to which she was having

recurring attacks of locking of her jaw. At that time, her sister-inlaw Anita (appellant ) said that she was not the lady, wife as she wanted

her to be. Over the said issue, she picked up a quarrel with Mangala. The appellant then poured kerosene on her person and set her on

fire in the verandah of the house. At that time, no one else was present. As she shouted, her mother-in-law Shantabai rushed to that place and

extinguished the fire. She brought her to Mayo Hospital for treatment in a van and admitted her in the said hospital.

The testimony of PW3-Rangari shows that on 4.6.2001 he was sent by API-Surajmal Baghel to Mayo Hospital. Accordingly, he

went to Ward No.24 of Mayo Hospital by obtaining permission from the concerned doctor for recording the dying declaration of Mangala.

Exh.20 shows that PW3 made a requisition to the Medical Officer stating that the patient was suffering from epilepsy from 3 to 4 years on

account of which she got fed up and poured kerosene on her person and set herself ablaze on 3.5.2001  at about 11 am and she has been

admitted in the Ward for treatment. It was enquired whether the patient is fit to give her statement. On the said requisition, the Medical Officer-

Dr. Choudhari (not examined) made an endorsement at about 10.00 am that the patient is fit to give her statement. Thereafter PW3 recorded the

statement of Mangala (Exh.37). Mangala stated that the appellant had taken her in verandah, poured kerosene on her person and set her on fire

and as she cried loudly, her mother-in-law came to that place and took her to the hospital for treatment. PW 3 obtained signature  of

Mangala on the said statement. During the cross-examination PW3 admitted that he had not issued a letter to the Medical Officer as to

whether the patient was mentally and physically fit to give her statement. PW3 stated  that he was aware that the patient was suffering from

epilepsy. He further admitted that it is not mentioned on Exh.37 as to at what time he started recording the statement and when he concluded it. PW3

admitted that to ascertain as to whether the patient is in a position to make  her statement or not, it is necessary to put some questions to the

patient. He further admitted that it is necessary to mention that the person who is intending to record the statement was satisfied with the

condition of the patient, however there is no such kind of endorsement on Exh.37. It is further admitted that there is no endorsement of the doctor

on Exh.37 to show that the patient was physically and mentally fit to make statement. It was further admitted that it is necessary to read over the

recorded statement to the maker. However, there is no reference about it in the said statement.

A meticulous scrutiny of PW3 coupled with the dying declaration (Exh.37) makes it amply clear that there is no convincing evidence of the

Doctor on record that the patient was fit to give her statement either prior to or after recording it.

Thus, PW3 had not satisfied himself that the patient was in a fit condition to give her statement. His statement makes it doubtful whether

the patient who had received 93% burn injuries and who was not in a fit condition to give her statement on the same day at 3.15 pm, was fit

to make a statement at 10.00 am. It is not clear from the said dying declaration as to at what time the said dying declaration of Mangala was

recorded and whether at that point of time she was in a fit mental state to give her statement. Similarly, it is to be noted that on the first dyingÂ

declaration impression of left toe of the deceased was obtained, whereas on the second dying declaration dated 4th June,2001, there appears

to be a signature. However, the said signature was not identified by anyone. As already discussed above, considering the fact that Mangala

was suffering from epilepsy attacks, it is doubtful whether Mangala was mentally fit to give her statement before PW3, more particularly when the

Doctor has not been examined by the prosecution. The dying declaration (Exh.37)  is not a reliable document. Similarly, the testimony of

PW3 does not inspire confidence.

The third dying declaration was recorded by the Executive MagistrateRamesh Sukhdeve (PW6) on 5.6.2001 at about 5.50 pm. PW6 stated

that on 5.6.2001 he had gone to Mayo Hospital for recording the dying declaration of a patient in another case. The Police Officer from

Pachpaoli gave a requisition memo to him and requested him to record the statement of patient-Mangala. PW6 then issued a letter to the

doctor to ascertain whether the patient was in a position to make a statement. The doctor made an endorsement that the patient is in a

condition to make a statement.

PW6 then went near the patient in Ward No.24. He removed the relatives of the patient from the said Ward who were present near the patient.

PW6 then recorded the statement of the patient in question-and-answer form. He obtained left thumb impression of the left toe. The patientÂ

made statement (Exh.43) that appellant poured kerosene on her person and set herself on fire. The requisition sent by PW6 is at Exh. 44

and the fitness certificate issued by the doctor in respect of Mangala is at Exh.45. It is worthwhile  to note that the prosecution has failed to

examine the Medical OfficerDr. Choudhari  who had issued the fitness certificate in respect of Mangala on 5.6.2001 at about 5.00 pm.Â

Exh.45 which is the requisition issued by the Executive Magistrate PW6-Sukhedeve shows that at about 4.30 pm he had arrived at Mayo

Hospital  on 5.6.2001. At about 5.00 pm, Medical Officer-Dr. Choudhari (not examined) had issued the certificate to the effect that

patient is fit for statement, whereas Exh.44 reveals that in the margin the timings regarding receipt of dying declaration is mentioned as 4.30 pm.

Exh.44 shows that requisition was received at 4.30 pm. Executive Magistrate arrived at the hospital at 4.35 pm. Endorsement of the doctor

regarding fitness of Mangala was given at 5.00 pm by Dr. Choudhari. It appears that thereafter the statement of Mangala was recorded

by the Executive Magistrate-Sukhdeve (PW6).

Significantly, in the third dying declaration it is stated by Mangala that on 3.6.2001 between 11.30 and 11.40 am, while she was sleeping,

her sister -in-law was asking her to bring sofa-set, colour TV, fridge, phone and Hero-Honda motorcycle as dowry articles. The next question

asked was, as to who was present when this incident occurred to which Mangala replied that when she was on fire she saw her sister-in-law in front

of her.

In this context, if the second dying declaration (Exh.37) and the third dying declaration (Exh.43)Â are compared, it is noticed that there is clear

discrepancy in the contents of both the dying declarations. In the second dying declaration there is a mention that Mangala was not keeping

good health, therefore she was sleeping. Moreover she was suffering from epilepsy and was having recurring attacks of locking her jaw. It isÂ

stated that her sister-in-law Anita said that she was not a lady, wife as she wanted her to be and over the said issue, she picked up a quarrel

with Mangala, poured kerosene and set her on fire in the verandah of the house. Thus, as per the dying declaration (Exh.43), theÂ

incident had taken place in verandah of the house, while Mangala was sleeping, the appellant had altercation with her by saying that that she

was not a lady, wife as she wanted her to be. She picked up a quarrel with Mangala and then poured kerosene on her person and set her ablaze.

Whereas as per the third dying declaration (Exh.43), while Mangala was on fire, she saw her sister-inlaw in front of her and the appellant

demanded sofa, colour TV, fridge, phone and Hero Honda motorcycle as dowry articles. Thus, for the first time, there is a reference of demand of

dowry in the third dying declaration of Mangala.

Interestingly, no allegations under Section 498A of IPC levelled either by Mangala or her relatives, prior to the incident. Even the charge

under Section 498A is also not framed against the appellant. For the first time, the case of cruelty was brought by the prosecution in the third

dying declaration. Thus, contents in both dying declarations appeared to be contradictory to each other. There is no cogent and corroborative

evidence brought  on record by the prosecution by way of both the dying declarations. Admittedly, Mangala was suffering from epilepsy. In the

circumstances, it is not clear whether she was fit mentally to make her statement either before the police or before the Executive Magistrate. Thus,

it is totally unsafe to rely on both the dying declarations second as well as third dying declarations. Pertinently, Dr.Choudhari, the Medical Officer

who allegedly made endorsement that the patient was in a fit condition to give her statement, has not been examined by the prosecution for theÂ

reasons best known to them, which makes it doubtful whether in fact Mangala was in a fit mental state to make her statement before the Executive

Magistrate on 5.6.2001. The prosecution has failed to examine any independent witnesses, such as, neighbours who were allegedly present at the

time of incident. The physical and mental health which is a crucial aspect, has not been proved by the prosecution. Thus, non-examination of Dr.

Choudhari who allegedly stated about the fitness of Mangala is fatal to the prosecution case. The prosecution has also failed to examine the mother-in-

law of deceased-Mangala, who took her to the hospital and got her admitted there. The prosecution has failed to establish the presence of the

appellant at the place of the incident in the house at the relevant time. Thus, the second and third dying declarations are doubtful documents and do not

inspire confidence. The prosecution has failed to prove that Mangala died an homicidal death. The first dying declaration dated 3rd June, 2001

recorded by HC Mahadeo stating that Mangala committed suicide, appears to be true.

It is worthwhile to note that the statement of father of the deceasedPW4 Panjabrao and the uncle of deceased PW5-Lahu Bhende has been

recorded after 25 to 30 days from the date of the incident, which shows that the story put forth by the prosecution appears to be an afterthought.

The statement of PW4 shows that Mangala made a oral dying declaration before him stating that appellant had set her on fire. Apart

from that, PW4Â failed to state the details of the incident. PW4Â admitted that he was present in the hospital from the date of admission till the

death of Mangala. The police visited the said place. He admitted that his statement was recorded after 25 to 30 days of the incident, fr which no

explanation comes forward.

According to PW5-Lahu Bhende, Managala told him that while she was sleeping, the appellant poured kerosene on her body and set her on

fire. She cried for help and people came there and extinguished fire. She further told him that she was carried to the hospital. He admitted that

his statement was recorded after about 25 to 30 days of the incident, although he was very much present in the hospital from the date of

admission till death of Mangala. Thus, PW5 had not lodged a complaint immediately against the appellant. Even there is no allegation of cruelty

prior to the death of deceased made by PW4 and PW5 against the appellant. In the circumstances, the whole story of the prosecution is

under the shadow of doubt.

On the point of inconsistent dying declaration, an useful reference of the judgment relied upon by the learned senior counsel can be

made,   in case of Bhadragiri Venkata Ravi vs. Public Prosecutor, High Court of Andhra Pradesh, reported in (2013) 14 SCC 145. Para

Nos. 22,23, and 24Â read thus :

“22, It is a settled legal proposition that in case there are apparent discrepancies in two trying declarations, it would be unsafe to convict

the accused.

In such a fact-situation, the accused gets the benefit of doubt. (vide Sanjay v. State of Maharashtra: (2007) 9 SCC 148; and  Heeralal

v.State of Madhya Pradesh, (2009) 12 SCC 671).

23 In case of plural./multiple dying declarations, the court has to scrutinise the evidence cautiously and must find out whether are is

consistency particularly in material particulars therein.   In case there are inter-se discrepancies in the depositions of the witnesses given in

support of one of the dying declarations, it would not be safe to rely upon  the same. In fact it is not the plurarity of the dying declarations but

the reliability thereof that adds weigh to the prosecution case. If the dying declaration is found to be voluntary, reliable and made in a fit mental

condition, it can be relied upon without any corroboration. But the statements should be consistent throughout.

24 In case of inconsistencies, the court has to examine the nature of the same i.e. whether they are material or not and while scrutinising the contents

of various dying declaratios, the court has to examine the same in the light of the various surrounding facts and circumstances, In case of dying

declaration, as the accused does not have right to cross-examine the maker and not able to elicit the truth as happens in the case of other

witnesses, it would not be safe to rely if the dying declaration does not inspire full confidence of the court about its correctness, as it may be result

of tutoring, prompting or product of imagination. The court has to be satisfied that the maker was in a fit state of mind and had a clear

opportunity to observe and identify the assailant(s).â€​

Learned senior counsel further relied upon judgment, in case of Samadhan Dhudaka Koli vs.State of Maharashtra, reported in (2008) 16 SCC

705, on the point of inconsistent dying  declaration. Para nos.15,16,18 read thus:-

“15 Evidently, there are a few inconsistent and contradictory dying declarations. The court while appreciating evidence on the basis of such

dying declarations is required to take into consideration inconsistencies between two statements. In this case, the learned Sessions Judge and

the High Court proceeded on the basis that out of the three dying declarations, in two of them the deceased did not make any allegation against

her husband.

A judgment of conviction can be recorded on the basis of a dying declaration alone, but the court must have been satisfied that the same was true

and voluntary. Indisputably,   for ascertaining the truth as regards the voluntariness of making such a dying declaration, the court is entitled to

look into the other circumstances but the converse may not be true.

Consistency in the dying declaration, therefore, is a very relevant factor. Such a relevant factor cannot be ignored. When a contradictoryÂ

and inconsistent stand is taken by the deceased herself in different dying declarations, they should not be accepted on their face value. In any event,

as a rule of prudence, corroboration must be sought from other evidence brought on record. In Mehiboobsab Abbasabi Nadaf vs.State of

Karnataka (2007 (9) SCALE 473) where four dying declarations were record,this court opined :

“6. Conviction can indisputably be based on a dying declaration.  But, before it can be acted upon, the same must be held to have been

rendered voluntarily and truthfully. Consistency in the dying declaration is the relevant factor for placing full reliance  thereupon. In this

case, the deceased herself had taken contradictory and inconsistent stand in different dying declarations. They, therefore, should not be accepted on

their face value. Caution,in this behalf, is required to be applied.â€​

This Court noticed that as the deceased attributed the acts primarily on her parents-in-law and they having been acquitted, it was difficult to hold

that appellant alone was responsible for causing her death.â€​

In the instant case, there are material inconsistencies in all three dying declarations. The first dying declaration dated 3.6.2001

speaks about suicidal death. The second dying declaration dated 4.6.2001 the incident of accused puring kerosene on the body of the deceased

and setting her on fire took place in a verandah, on quarreling with her; whereas the third dying declaration demonstrates that the accused

poured kerosene on the person of deceased, while she was sleeping and set her on fire. In these circumstances, it is difficult to rely

upon the inconsistent dying declarations.

On the point of fitness of the person making the dying declaration,  the learned senior counsel further relied upon the judgment, in

the case of Manik Vanaji Gawali vs.State of Maharashtra; reported in 2013 CRI. L.J. 972, more particularly para nos.31 and 46 which read thus:

Whether a declarant is in fit state of mind is a question of fact. That fact is to be proved by the person who has received,

listened, drawn memorandum or leaves in his memory. He has to prove the fact of state of health and mind of the declarant. Whenever such

person proves that the declarant was in fit state of mind, it is his own opinion based on judgment as to said state derived from facts.

Even if a certificate by an expert about fitness of state of health is placed on record, such certificate by itself will not prove the factÂ

represented therein, rather it will have to be proved by the medical witness by stepping into witness box. This aspect is ruled, inter alia, in Malay

Kumar Ganguly vs. Dr.sukumar Mukherjee & ors., (2009 ) 9 Suypreme Court Cases 221 at paragraph 34 by placing reliance on State of

H.P. vs,. Jai Lal (supra) Paragraph 34 of the said judgment is quoted below for ready reference:

“34. Medical evidence is difficult one. The court for the purpose of arriving at a decision on the basis of the opinions of experts must

take into consideration the difference between an “expert witnessâ€​ and anâ€​ordinary witness.â€​

The opinion must be based on a person having special skill or knowledge in medical science. It could be admitted or denied. Whether such an

evidence could be admitted or how must weight should be given thereto, lies within the domain of the court. The evidence of an expert should,

however, be interpreted like any other evidence. This Court in State of H.P. vs. Jai Lal held as under ; (SCC pp.2285=286, paras 17-10)â€​

An expert is not a witness of fact. His evidence is really of an advisory character.

The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusion so as to

enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The

scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along

with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the date

and material furnished which form the basis of his conclusion.

The report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in court and has to faceÂ

cross-examination.  This Court in Haji Mohammad Ekramul Haq vs.State of W.B. (2003) 8 SCC 752 concurred with the find of the

High Court in not placing any reliance upon the evidence of an expert witness on the ground that his evidence was merely  an opinion

unsupported by any reasons.â€​

In the instant case, the Doctor has not been examined by the prosecution who had made an endorsement on the requisition issued by theÂ

Executive Magistrate prior to recording the second as well as third dying declaration (Exh.43). Similarly, the Magistrate has not satisfied himself

whether the patient was in a fit mental state of mind to give her statement. Moreover, the dying declarations relied upon by the prosecution are

inconsistent on material aspects which creates a serious doubt about the manner in which the incident had taken place. The learned trial Judge

ought to have considered the aforesaid facts and circumstances of the case in its proper perspective. As such, we are of the considered view that

the prosecution has miserably failed to prove its case beyond reasonable doubt. Hence the following order :-

(a) Criminal Appeal No. 439/2009Â is allowed.

(b) The impugned judgment and order dated 08.09.2009 in Sessions Trial No.58/2002 passed by learned Ad-hoc Additional Sessions Judge-2,

Nagpur is set aside.

(c) The appellant/accused is acquitted of the offence punishable u/s 302 of the IPC.

(d) The appellant is on bail. Her bail bonds shall stand cancelled.