Prakash Dadarao Vaidya and Others vs The State of Maharashtra and Others

A.B. Chaudhari, J.—Being aggrieved by judgment and order dated 17.04.2004 passed by Additional Sessions Judge, Amravati in Sessions Trial No. 37/1999, by which the appellants; Prakash Vaidya, Anil Bawankar, Sanjay Bawankar and Raja @ Rajendra Vaidya were convicted for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 400/-, in default to undergo rigorous imprisonment for six months, the present appeal was filed by the appellants.

FACTS:

Briefly stated, the case of the prosecution is that the deceased Ratnabai w/o Ramji Moharkar, r/o Kawtha Kadu was a Labourer. On the fateful day of incident i.e. on 20.10.1998 between 1.30 to 1.45 p.m. she was driving her she goats towards her house, when she happened to pass from the house of accused No. 1-Prakash, who gave her a call. She, therefore, went to him and enquired as to why she was called. He stated that, her she goats were frequently damaging the platform of Hanuman temple and she should take care. When she stated that she did not tell the she goats to do so, he called her inside the house where she found other accused persons; Sanjay Bawankar, Anil Bawankar, Raja Vaidya and one more person. Accused Prakash had a green coloured tin in his hand containing Kerosene. As soon as she entered the house, he poured kerosene on her person and rest of the accused persons threw burning match sticks on her person. She caught fire and raised hue and cry and started running. Her aunt-Bhagirathibai came over there and gave her a piece of saree. By that time, all accused persons escaped. Ratnabai was then carried to the Government Hospital, Amravati in an auto rickshaw by her son Ananta Mohorkar. In the hospital, Special Judicial Magistrate recorded her dying declaration (Exh.-15). Thereafter, Police Inspector Vinayak Bihade also recorded her dying declaration (Exh.-22) after having obtained certification from the Medical Officer about her health. On the basis of her dying declaration, crime was registered against the accused persons. Two months prior to the incident, there was a quarrel between the deceased and accused No. 1-Prakash on account of money transaction. Crime No. 150/1998 was registered and the investigation has commenced. PW13-Ramdas Ghule conducted investigation. Post mortem was conducted. Post mortem report Exh.-40 was proved wherein it is stated that the death was due to 58% burn injuries. Inquest panchanama, spot panchanama were prepared, seizure was made, map Exh.-35 was drawn. A green coloured tin of one litre capacity was recovered at the instance of accused No. 1-Prakash. Statements were recorded. Chemical Analyser''s report was received showing traces of Kerosene. Thereafter, charge sheet was filed in the court of Judicial Magistrate First Class, Chandur Railway. The case was committed to the Court of Sessions. The prosecution examined its witnesses, who were cross-examined. Defence of the accused persons was that there was political rivalry in between him on one hand and Ramdas Jibhkate, Nana Vaidya, Anna Vaidya on the other hand. They were falsely implicated in concocted case when as a matter of fact, Ratnabai had committed suicide. Accused Prakash was elected as Sarpanch of the village, which was a big jolt for these persons and in order to take revenge, they were falsely implicated in the alleged offence of murder by converting her suicidal death into murder. Ratnabai was habitual drunkard, a bootlegger and quarrelsome lady. She had dispute with her younger son and, therefore, she committed suicide by setting herself on fire. That was the defence pleaded only by accused Prakash. Other accused persons did not make any such submission. Two defence witnesses were examined by the accused i.e. DW1-Mahadeo Chintamanji Bhoyar and DW2-Pankaj Kisanrao Vaidya, the real brother of deceased Ratnabai. Finally, the trial Judge convicted the appellants as stated above. Hence, this appeal.

SUBMISSIONS:

In support of the appeal, Mr. Mardikar, learned Senior Advocate for the appellants, made the following submissions.

"(i) The prosecution case is based mainly on the dying declarations Exhs. 15 and 22. None of these dying declarations have been corroborated. Looking to the voluminous evidences on record that there existed enmity between accused No. 1-Prakash, who was elected as Sarpanch defeating the other party in the village, the case of suicide was converted into one of murder.

(ii) The dying declaration Exh.-15 was recorded by PW1-Prakash Dabhade, Special Judicial Magistrate, at about 11.20 a.m. on the next day i.e. on 21.01.1998. The space on paper Exh.-15 between alleged fitness certificate required for recording dying declaration and the dying declaration recorded clearly shows that adjustment was made with a view to have certificate of the doctor. He then submitted that the patient could not have been in conscious physical or mental state having received 58% burn injuries and must have been administered the pain killer injections thereby putting her physical and mental condition into jeopardy and as such she was unable to give the truthful dying declaration. Similar is the case with the dying declaration that was recorded by PW5-Vinayak Bhide, Police Inspector, two days thereafter i.e. Exh.-22.

(iii) Mr. Mardikar, learned Senior Advocate, then contended that the statements made in both the dying declarations are inconsistent, improper and untrustworthy. Not only that, both the dying declarations show insertion of unnecessary details, which an injured person is not expected to state. The second dying declaration recorded by Police officer, that too after two days when mental as well as physical condition of the patient was not sound, appears to be highly doubtful looking to the detailed account written in the dying declaration. The Police Inspector, who recorded the said dying declaration namely; PW5 Vinayak was the person who was instrumental in roping accused-appellants in the crime in question about which complaint to the higher officers were made and not only that another police officer was instructed by higher officer and the said officer had recorded statements of number of villagers but all those statements were suppressed from the court and the witnesses from the village were not examined who had clearly supported the theory of defence namely; Ratnabai had committed suicide due to her own doings.

(iv) Once Exh.-15 was recorded by the Magistrate, there was no reason for Mr. Dabhade, Special Judicial Magistrate to record second dying declaration for which no explanation is coming forth.

(v) Highlighting the possibility of dying declaration being recorded in the presence of rivals to the accused persons and particularly because accused No. 1-Prakash got elected as Sarpanch of the village, resulting into tutoring of the recording of the dying declarations, Mr. Mardikar, learned Senior Advocate invited our attention to the cross-examination of PW1-Dabhade, Special Judicial Magistrate, so also PW5-Vinayak and the evidence of other witnesses as well and submitted that there is enough evidence on record to draw an inference that the rivals of the accused persons in the village had surrounded the deceased and were tutoring her while recording dying declaration, on both the occasions. Therefore, there is a strong possibility of untrue dying declarations being recorded. However, the trial court did not extend the benefit of doubt since it had based its conviction only on the two dying declarations. According to Mr. Mardikar, the investigation was itself influenced and one sided with a view to anyhow secure conviction of the appellants.

(vi) Highlighting further that the prosecution changed the spot of the incident for which benefit of doubt must got to the accused persons. Mr. Mardikar, learned Senior Advocate for the appellants, then submitted that spot is shown to be 33 ft. away from the house of accused No. 1 and, therefore, there is a reason to believe that Ratnabai committed suicide at a distance of 33 ft, away from the house of Prakash and the prosecution story that she was caught and brought into the house of Prakash where kerosene was allegedly thrown on her and she was put on fire, is clearly a false story.

(vii) In continuation of his submissions about the investigation or statements recorded by PSI Ghule as directed by higher officers, Mr. Mardikar, learned Senior Advocate, submitted that this Court may call for police case diary and see the statements of the villagers, which were recorded since the ultimate object is to find out the truth and for this he relied on judgment in Ashok Debbarma @ Achak Debbarma Vs. State of Tripura, (2014) AIRSCW 1628 : (2014) CriLJ 1830 : (2014) 3 JT 644 : (2014) 3 RCR(Criminal) 261 : (2014) 3 SCALE 344 : (2014) 4 SCC 747 . He then submitted that statements of large number of villagers which were recorded by Mr. Ghule, clearly supported the theory of commission of suicide by deceased Ratnabai but the prosecution chose to withhold the entire evidence to bag the conviction.

(viii) Mr. Mardikar, learned Senior Advocate, then invited our attention to the cross-examination of hostile witnesses examined by the prosecution and submitted that these witnesses have clearly supported the defence theory about suicide. Not only that, these witnesses are none else than the son of deceased Ratnabai and her mother. He also relied on the evidence of defence witness examined by the defence and contended that there is no reason why the evidence of those defence witnesses could not be accepted and at any rate there is no reason why benefit of doubt could not be extended to the appellants. He relied upon the judgments in Dudh Nath Pandey Vs. State of Uttar Pradesh, AIR 1981 SC 911 : (1981) CriLJ 618 : (1981) 1 SCALE 285 : (1981) 2 SCC 166 : (1981) SCC(Cri) 379 : (1981) 2 SCR 771 , Smt. Laxmibai w/o Dhanraj Moon and anr...vs.. The State of Maharashtra; 2012 All M.R. (Cri) 3537, Thurukanni Pompiah and another vs. State of Mysore, AIR 1985 SCC 930 ; State of Punjab Vs. Parveen Kumar, (2005) 1 DMC 89 : (2004) 10 JT 388 : (2004) 10 SCALE 81 : (2005) 9 SCC 769 ."

Though not much relevant to the present matter, we think we should also deal with submissions made by Mr. Mardikar, learned Senior Advocate in relation to Rule 12 of Chapter VI of the Criminal Manual. On 25.03.2015, this Court had heard the appeal for about two hours and on the next day, we asked Sheristedar of this Court to ask the accused to sit on the floor of the courtroom and not on the bench. Mr. Mardikar, learned Senior Advocate, referring to Rule 12 of Chapter VI of Criminal Manual, submitted that the instructions issued by this Court not to allow the appellants to sit on the bench but to ask them to sit on the floor of the Court room is not in conformity with Rule 12. He submitted that he made this submission in order to ward off any possible grievance or complaint from the human rights activists about the treatment to the appellants-accused persons as aforesaid. He submitted that Rule 12 of Chapter VI of the Criminal Manual clearly states that the accused persons should be provided with the chairs or benches for sitting. Hence, the instructions given by this Court asking the appellants to sit down on the floor, may not be correct.

We have carefully considered the submission made by Mr. Mardikar, learned Senior Advocate with reference to Rule 12 of Chapter VI of the Criminal Manual. Rule 12 of Chapter VI of Criminal Manual reads thus:

"Chapter VI:

General Rules as to inquiries and trials in all courts precedence and expeditious disposal of capital cases:

The accused person should be informed by the Court at the beginning of every trial that he may sit, if he desires to do so and chairs or benches should, whenever available, be provided for this purpose. The accused must, however, stand up, whenever he is addressed by the Court."

From bare reading of Rule 12 quoted above, we find that the same relates to the accused person who is under-trial before the Sessions Court or the Lower Court. The Rule does not relate to those who are convicted, having been found guilty of the offence. In so far as under-trials are concerned, they are deemed to be not guilty till they are found to be guilty and are then convicted. Rule 12 specifically employs the words "accused person" who is brought to the court as under-trial, that to say, one who is not convicted. This rule would, therefore, validly apply for the under-trial prisoner and not the person who is held guilty of the offence and is then convicted. In the instant case, all the appellants were convicted by the Trial Court for the serious offence of murder and were sentenced to undergo imprisonment for life. In this appeal, they were ordered to be released on bail pending hearing of the appeal. We, therefore, think that the reliance placed on Rule 12 by Mr. Mardikar, the learned Senior Advocate, is not correct. The issue about the human rights of the convicts or the appellants before us, as raised by Mr. Mardikar, the learned Senior Advocate, in the above context that this Court directed the appellants-convicts to sit down on the floor and not on the benches or the chairs is required to be dealt with. We are aware that the human rights of the accused persons or the convicts have been projected by the Human Rights Activists, NGOs and so and so with great zeal; but they are hardly bothered about the victim''s human rights. Merely because the convicts were asked to sit down on the floor of the Court room rather than on the chairs or the benches, we do not think that any human rights activists can have a grievance as to why the same was done, because then they are entitled to be asked the question as to what they were doing when the human rights of the victim was violated, so also the children left by the victim and what they have done for them. Thus, the Human Rights Activists and NGOs have made too much of human rights of the convicts or the accused persons.

It would be appropriate for us to quote the following portion from the observations of the Supreme Court in the case of Rattan Singh Vs. State of Punjab, AIR 1980 SC 84 : (1980) CriLJ 11 : (1980) 82 PLR 191 : (1979) 4 SCC 719 : (1980) SCC(Cri) 17 : (1980) 1 SCR 846 : (1980) 12 UJ 58 where the celebrated Judge Shri V.R. Krishna Iyer said thus:--

"It is a weakness of our jurisprudence that victims of crime and the distress of the dependents of the victim do not attract the attention of law. In fact, the victim reparation is still the vanishing point of our criminal law. This is the deficiency in the system, which must be rectified by the legislature."

However, in Criminal Law, what is found is, the poor victims of crime are entirely overlooked in misplaced sympathy for the criminal by such human rights activists and NGOs. In fact, the guilty man is lodged, fed, clothed and entertained in a model cell at the expense of the State. And the victim, instead of being looked after, is contributing towards the care of prisoners during their stay in prison. In fact, in our opinion, it is a shortcoming of our criminal jurisprudence that the victims of crime do not attract due attention and the criminal judicial system is arbitrary and operates to the disadvantage of the victim. It is a fact that the United Nations General Assembly in 1985 adopted a Declaration of the Basic Principles of Justice for the Victims of Crime and Abuse of Power. However, we find that there is no law in place for implementation of the said Declaration that was adopted by India for the last three decades, nor there is an implementation of the said Declaration. It is only the Courts who make award of compensation for the victims while disposing of the cases.

After completion of hearing of the instant Criminal Appeal, we made an order on 26.03.2015 itself cancelling the bail that was granted to the appellants during pendency of the appeal. Mr. Mardikar, learned Senior Adv., however, expostulated the action taken by this Court to cancel the bail and to take the appellants into custody. He argued that during all these years, the appellants were on bail. There is no complaint, whatsoever, of any nature or grievance of the prosecution also to cancel their bail. There is no breach of any of the conditions or reasons why the bail should be cancelled. We, however, ordered taking the appellants into custody and to produce them on 15th April, 2015. While understanding the strong disapproval shown by Mr. Mardikar, learned Senior Advocate, to cancel bail granted to the appellants, we find that grant of bail during pendency of appeal till final hearing of the appeal is not a matter of right and the Court may order extending exemption from being taken into custody having regard to the prima facie case. The principles about cancellation of bail spoken of by Mr. Mardikar have no application in the instant case, namely as to whether appellants violated the conditions or how they behaved during pendency of the appeal. At any rate, we have taken the appellants into custody by cancelling their bail, because they were convicted by the learned Trial Judge for the serious offence of murder and sentenced to imprisonment for life, and after completion of hearing of appeal, we decided to take them into custody. The second reason is that in the event of judgment of dismissal of appeal of the convicts by the High Court, the remedy of criminal appeal by filing a Special Leave Petition before the Supreme Court is available. Filing of Criminal Appeals before the Supreme Court is governed by the Supreme Court Rules, 2013, which came into effect from 19th August, 2014. Rule 3 thereof reads thus:--

"3. Where the appellant has been sentenced to a term of imprisonment, the petition of appeal shall state whether the appellant has surrendered and if he has surrendered then the appellant shall, by way of proof of such surrender, file the certified copy of the order of the Court in which he has surrendered or a certificate of the competent officer of the Jail in which he is undergoing the sentence. A mere attestation of the signatures on the Vakalatnama from the Jail authorities shall not be considered as sufficient proof of surrender. Where the appellant has not surrendered to the sentence, the petition of appeal shall not be accepted by the Registry unless it is accompanied by an application for seeking exemption from surrendering. Where the petition of appeal is accompanied by an application for exemption from surrendering, that application alone shall be posted for hearing/orders before the Court in the first instance."

Above Rule 3, in terms, shows that the petition of appeal cannot be even accepted by the Registry of the Supreme Court without the appellants surrendering to the sentence. In the wake of the above Rule, we think, we made no mistake in cancelling the bail and taking the appellants into custody, since, in any case, the appellants would have to surrender, as we have today delivered the judgment dismissing the appeal preferred by the appellants.

Per contra, the learned A.P.P. supported the impugned order of conviction and sentence passed by the trial Judge. The learned A.P.P. submitted that the dying declarations, on the basis of which conviction has been recorded by the trial court, are consistent, trustworthy and need no corroboration. According to him, it is well settled legal position that conviction can be recorded on the basis of dying declaration and it is not necessary that the same should be corroborated by any other evidence. Even otherwise, he submitted that there is a corroborative evidence on record to the dying declarations which are consistent without any infirmity and made by the deceased immediately. He then submitted that son and mother of the deceased were obviously won-over and, in fact, the mother admitted in her cross-examination that she was worried about the children of the deceased who live in the same village where accused persons have a say. He, therefore, submitted that the same is the story with the defence witnesses examined by the defence who were afraid of the accused persons and, therefore, deposed like parrots for the defence. But their evidence has been rightly discarded by the trial Judge and the learned trial Judge scrutinized the evidence of the prosecution very carefully and ultimately came to the conclusion that the dying declarations are trustworthy and without any infirmity and thus based the conviction. No fault could be found with the impugned judgment and order and hence the appeal deserves to be dismissed.

CONSIDERATION:

We have gone through the entire evidence with the assistance of learned counsel for the rival parties. We have seen all the documents and dying declarations proved by the prosecution on record of the case. We have seen the reasons recorded by the learned trial Judge for convicting the appellants. We have heard learned counsel for the rival parties at length.

In the first place, it is essential to consider the contentions raised by Mr. Mardikar, learned Senior Advocate for the appellants about the request to call the case diary and to see the statements of the villagers, which were recorded by PSI Ghule after complaints were made by accused persons or their relatives and villagers to the higher authorities about investigation being one sided made by the Investigating Officer. Mr. Mardikar, learned Senior Advocate then contended that the villagers had made complaint to the higher officers about the manner in which the investigation was being done. Therefore, the higher officer directed PSI Ghule to record the statements of the villagers to find out the truth. He then contended that PSI Ghule recorded several statements by going to the village and in those statements, the villagers had stated that the case is one of suicide in the sense that the deceased had committed suicide by setting herself on fire being fed up with quarrels, she had with her son and that the appellants were not at all involved in the alleged crime. The learned Senior Advocate further relied on judgment in the case of Ashok Debbarma alias Achak Debbarama (supra) to contend that it is the duty of this Court to find out the truth and, therefore, case diary should be called for perusal of the statements recorded and thereafter further necessary orders may be passed.

At the outset, we find that admittedly, the appellants had not taken any steps before the trial court to buttress this point or to call the case diary or call upon the trial Judge to see the statements of the witnesses or villagers about which the submissions have been made before us. There is no reason whatsoever as to why that was not done in the trial court. That apart when the appeal was filed by the appellants, no such plea was taken in the memo of appeal nor any application was filed i.e. when the appeal was filed in the year 2004. The decision cited by Mr. Mardikar, learned Senior Advocate, is clearly distinguishable on facts and has no application in the facts of the present matter. It is further noteworthy that PSI Ghule, about whom the arguments have been advanced by Mr. Mardikar, learned Senior Advocate, was not the Investigating Officer as contemplated by law. Therefore, these are the questions which could have been agitated before the trial Judge and it would be a travesty of justice to reopen the trial in the manner suggested to by the learned Senior Advocate. We are sure that we will not be able to do such an exercise of seeing the statements of villagers, which do not form part and parcel of the charge sheet nor any reference about which was made before the trial Judge for verification thereof. We are, therefore, not inclined to accept the said contention. Mr. Mardikar, learned Senior Advocate, then referred to Exh.-77, which was an application for taking Sanha entry and Exh.83. However, we find that the appellants did not take any steps pursuant to the orders made by the court and allowed the trial to proceed. It is too late in the day now for the appellants to try to ignite such an issue over and again in this appeal.

The next aspect about the alleged change of spot will have to be taken into consideration before proceeding to deal with the appeal further. Inviting our attention to the map Exh.-35 so also evidence of the witnesses, Mr. Mardikar, learned Senior Advocate, contended that the spot of incident is stated to be at a distance of 33 ft. from the house of appellant Prakash near a Neem tree where the deceased is shown to have fallen down under the tree. It is true that the spot where the deceased had fallen down under the tree is at a distance of 33 ft. from the house of Prakash but that does not mean, in the absence of any evidence on record, that the incident took place at the a distance where she had fallen down namely under the Neem tree. On the contrary, case of the prosecution is consistent to the effect that after being drenched with kerosene in the house of Prakash by him, other accused persons had thrown on her person the lighted matchsticks setting her on fire while she was attempting to run away from his house and, in fact, ran away from his house towards the Neem tree where she had fallen down by covering distance of 33 ft from the house of appellant-Prakash. That is the reason why the burnt pieces of her saree were found near the place where she had fallen down but then by this, it cannot be said that the prosecution had changed any spot since it is the case of the prosecution that there is evidence on record to show that she started running from the house of Prakash after she was set on fire by appellants. We, do not accept the contention that the prosecution changed the spot of incident.

Next, coming to the evidence of prosecution witnesses, we find that the dying declaration Exh.-15 was recorded by PW1-Prakash Dabhade, Special Judicial Magistrate first in point of time. PW1-Prakash in his evidence clearly stated that upon receipt of requisition for recording dying declaration of deceased Ratnabai Ramaji Moharkar, he went to the Irwin Hospital and the doctor issued a certificate that Ratnabai was in a fit mental and physical state to give her statement. The requisition given by him to doctor is at Exh.-14. Thereafter, he recorded the dying declaration of Ratnabai at Exh.-15 by asking questions and getting answers and finally he took her thumb impression on all the pages of the dying declaration. He then obtained certificate of fitness after recording dying declaration from the same doctor after he read over the statement to the patient who admitted the same to be correct. In his evidence, he stated that he recorded dying declaration Exh.-15, as per her say. It is noteworthy that the incident had taken place at 13.45 hours on 20.10.1998 and PW1-Prakash recorded her dying declaration when she was brought to the hospital on the next day on 21.10.1998 at 11.05 a.m. We have perused the cross-examination of PW1-Prakash. He has stoutly denied that he had left any space between Exh.-14 and Exh.-15 to facilitate the doctor to endorse subsequently. What we find from the cross-examination is that the defence has not asked a single question as to mental and physical state of the patient with any plea that she was administered any sedatives or medicines at the time or before recording of the dying declaration. The deceased Ratnabai was burnt to the extent of 58% and was admitted immediately after the incident on 20.10.1998 afternoon and must have been given the dose of pain killers in the hospital. But then there is no suggestion even in the cross-examination that before her dying declaration was recorded, at about 11.00 a.m., she was given any sedative or injections or pain killers in the morning of 21.10.1998. In this connection, we have also perused the medical case record of the hospital and we have seen the entries about administration of injections and medicines after admission to the hospital till the time of completion of dying declaration and we do not find from the record which is contemporaneous that any such sedatives were given to her anytime before recording was made.

In order to test the submission about the alleged space being left out, we have perused the original Exh.-14 and 15 and we find that there is no such space left with a view to allow the Doctor to make endorsement later on as contended. On the contrary, we find that after examination of the patient, PW1-Prakash recorded the dying declaration Exh.-15, obtained her signatures on each page and lastly endorsement of the doctor post recording of the dying declaration that she was fit mentally as well as physically is contemporaneous. We do not find that any space was left, as contended, in between Exhs. 14 and 15. We are, therefore, not prepared to accept the contention to that effect.

The next contention raised by Mr. Mardikar, learned Senior Advocate for the appellants, is that dying declaration Exh.-15 was tutored by Ramdas Jibhkate, Anna Vaidya and other villagers of rival group of the appellants and, therefore, the dying declaration Exh.-15 was recorded with a view to involve the appellants. We find from the cross-examination that the suggestions on this line have been emphatically denied by PW1-Prakash and we do not find any basis to believe that the deceased was surrounded in the hospital at the time of recording of Exh.15. On the contrary, the evidence of PW1-Prakash that he asked the persons standing around the patient to leave the place and then they had left the place has gone unchallenged and we have no reason to have any suspicion about it. We, therefore, find that the evidence of PW1-Prakash is loud, clear and consistent and without any infirmity. PW1-Prakash has honestly recorded dying declaration and nothing is shown about any special interest in the case while working as Special Judicial Magistrate. The contention that there was possibility of tutoring Ratnabai, therefore, cannot be accepted. We have perused Exh.-15 and we find that the same is recorded in question and answer form. This is the first dying declaration in point of time. Ratnabai, who was burnt to the extent of 58%, clearly answered to question No. 3 that the appellants had caught hold of her and put Kerosene on her person and when she attempted to run, immediately, the appellants followed her and ignited her with matchstick, as a result, she was burnt and the appellants ran away. In answer to question No. 5, she had given the statement about earlier part of the incident on the same day and repeated as to how she was burnt after putting Kerosene on her person. Question No. 6 was also answered by her clearly and without any hesitation. In answer to question No. 7, she expressed that accused should be brought to justice. But we find that there is excruciating wait for her to get justice.

Mr. Mardikar, learned Senior Advocate for the appellants, contended that the length and breadth of dying declaration recorded by PW1-Prakash and the manner in which the answers have been given by her, clearly shows that somebody else had either tutored her or got PW1-Prakash to write a dying declaration, as the patient with 58% burn injuries would not be able to narrate so many details in the dying declaration. We do not agree. What we find is that she was burnt 58% and found to be conscious so also in a fit mental condition before and after recording of dying declaration. This clearly shows that Ratnabai was fully conscious to make statement. Since the questions were asked in the particular manner, she had given specific answers to the questions in that manner and lastly she stated that she wanted justice. We do not find anything wrong with Ratnabai making the dying declaration to PW1-Prakash in response to the questions which were put to her. That apart, it would be apt to refer to the personality of the deceased Ratnabai described by the witnesses, which we think would be relevant. In the cross-examination of PW2-Ananta, son of Ratnabai, stated that Ratnabai hailed from village Kawtha Kadu while his father (her husband) was resident of village Mozar, Tq. Ner Parsopant, Dist. Yavatmal, where initially Ratnabai resided with her husband. His mother Ratnabai came back to village Kawtha Kadu, when he was 1 1/2 years old and his father also resided there for some time. His parents used to quarrel amongst themselves and, therefore, his father deserted Ratnabai. She led the life like maverick. At the time of recording of evidence, he was about 26 years of age, which means Ratnabai was living away from her husband for not less than two decades. He started residing with his mother, brother and sister in zopadpatti. His mother then used to sell liquor for earning livelihood and was also consuming liquor and used to pick up quarrel with anybody. Ramdas Jibhkate and Anna Vaidya used to supply liquor boxes to her for selling. She used to sell the liquor. It clearly appears that Ratnabai, for about two decades before the incident, was earning her livelihood for herself and her children by selling liquor supplied to her by the mischievous villagers. Thus the circumstances made the personality of the deceased Ratnabai ''tough'' like a sugarcane. We, therefore, find that Ratnabai was mentally strong and her personality was far away from being tutored by anybody.

Now, coming to the second dying declaration Exh.-22 recorded by PW5-Vinayak Bihade. We find from the evidence that he recorded the said dying declaration by issuing requisition Exh.-21 to the Medical Officer, who then endorsed that the patient was fully conscious for giving dying declaration and thereafter PW5 recorded her dying declaration in question and answer from. This dying declaration Exh.-22 recorded by PW5-Vinayak is being criticized by Mr. Mardikar, learned Senior Advocate for the appellants, on the ground that it is not possible to believe that this PW5-Vinayak was not aware about the fact that dying declaration Exh.-15 was already recorded by PW1-Prakash Dabhade, Special Judicial Magistrate and, therefore, according to Mr. Mardikar, recording of dying declaration Exh.-22 is highly doubtful and benefit must go to the accused persons. However, we do not find anything brought in his cross-examination on the said aspect. Apart from that, even if PW5-Vinayak recorded the dying declaration after two days, the same would not be a ground to reject either of the dying declarations. The learned Senior Advocate for the appellants then pointed out that there was discrepancy in the two dying declarations about the cause of quarrel. He submitted that cause of quarrel in the dying declaration Exh.-15 was that her she goats were damaging temple wall while in dying declaration Exh.-22 the cause is said to have been quarrel due to demand of money from Prakash, which he has not paid to her for last two months. It is true that the reason for quarrel in Exh.-15 was about nuisance by she goats; but in Exh.22, the second dying declaration, the said reason was also given and in addition, one more reason about demand for her unpaid money appears. In our opinion, merely because the cause for quarrel given in the second dying declaration is in addition to the cause of quarrel given in the first dying declaration, the same would not be an inconsistency. In both the dying declarations, she narrated the actual incident about the overt act of appellants in putting Kerosene on her person and then setting her on fire, with common intention, though she was attempting to run away and that is loudly clear and consistent in both the dying declarations which are trustworthy and corroborative of each other. What we further find is that on the incident proper which she described in both the dying declarations, there is hardly any cross-examination to disbelieve any of the two dying declarations. We, therefore, find no merit in the submission about any inconsistency about reasons for quarrel.

The decisions cited by Mr. Mardikar, learned Senior Advocate for the appellants in Dudh Nath Pandey vs. State of Uttar Pradesh; Smt. Laxmibai w/o Dhanraj Moon and anr...vs.. The State of Maharashtra; Thurukanni Pompiah and another vs. State of Mysore, State of Punjab vs. Parveen Kumar; (supra), in our opinion, are clearly distinguishable on facts. The present case is the one where we find that the dying declarations are consistent about the incident proper and are trustworthy.

Mr. Mardikar, the learned Senior Advocate for appellants, lastly invited our attention to the evidence of the defence witness so also the cross-examination of the hostile witnesses. The hostile witnesses are son Ananta and mother Bhagirathibai of deceased Ratnabai. It would be interesting to quote following portion from the evidence of Bhagirathibai as to why she supported the defence.

"3. It is true that the sons and daughters of Ratnabai are innocent. There is nobody to look after them. It is true that I feel they should not be troubled in anything. It is true that I am not deposing the truth in order to avoid confrontation with the accused."

In the evidence of these witnesses, it has been brought by defence that Ratnabai was arrested on 8-10 occasions, she was prosecuted in cases under Bombay Prohibition Act, offences were registered against her and these hostile witnesses readily admitted the same. We refuse to believe such evidence in the cross-examination because the defence never brought any proof of any case against Ratnabai under the Prohibition Act or her arrest on 8-10 occasions nor there is any cross-examination to the concerned police witnesses. The defence witnesses were confronted with their statements recorded by police under Section 161 of the Cr.P.C. and they denied those statements having been made. The law as to the treatment to the hostile witness is trite and we have no hesitation that the prosecution is entitled to ask the court not to rely on the evidence of hostile witness, which prosecution does not want to rely. All these witnesses were declared hostile and whatever was brought in the cross-examination about character of Ratnabai i.e. selling of liquor for her livelihood, consuming liquor etc. we are not much impressed with the manner in which her son and her mother have deposed against Ratnabai about her character of selling liquor nay we do not find any reason to blame Ratnabai because it clearly appears from the cross-examination of the witnesses that it was Ramdas Jibhkate and Anna Vaidya who used to supply boxes of liquor and it were the villagers who took advantage of her being woman and she being in financial constraints and had no alternative but to earn her livelihood by selling liquor. That is the dark side of the society. We, therefore, reject the evidence of the hostile witnesses.

We then come to the evidence of defence witnesses, who were examined to show that Ratnabai had committed suicide. DW1-Mahadeo was brought to show that Ratnabai was a prostitute and other witnesses joined the chorus. But in the cross-examination, he stated that he was saying so from the discussions amongst the villagers. We, thus, find that this witness has no personal knowledge. DW2-Pankaj Vaidya was examined whose evidence is also hearsay since Tanu Band was not examined though alive. The evidence of defence witnesses, thus will have to be rejected and we do reject the same.

The next contention is that dying declarations do not contend any specifications as to which accused has committed what overt act. Perusal of both the dying declarations clearly show the role played by accused persons. The submission that there was dishonest investigation by the investigating officer is also without any substance.

In the result, we have come to the conclusion that the prosecution proved its case beyond any doubt and the appellants committed the brazen act of killing a hapless woman who was unfortunately given to the profession of selling liquor for her own survival and her children, having been deserted by her husband and that too by playing in the hands of some mischievous villagers who threw her in the business of selling liquor by supplying her boxes of liquor, taking full advantage of her poverty.

We, therefore, find no merit in the present appeal. Hence we make the following order:--

ORDER

"[a] Criminal Appeal No. 514 of 2004 is dismissed.

[b] The appellants shall be sent to jail forthwith."