State Of Maharashtra vs Khandu & Ors.

The present appeal is directed against the judgment and order dated 10.02.2006 passed by the learned Additional Sessions Judge, Pusad, District Yavatmal, in Sessions Trial No. 31 of 1999, whereby the respondents/accused came to be acquitted of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code (hereinafter referred to as “IPC”).

The prosecution case, in brief, is that deceased, Smt. Bebi w/o Subhash Manwar, was residing at Ambedkar Ward, Pusad. According to the prosecution, the respondents were neighbours of the deceased and there used to be frequent quarrels between the two families. The husband of the deceased was earning his livelihood as a rickshaw puller.

On 30.11.1998, while the husband of the deceased had gone out to ply his rickshaw, respondent No. 2 allegedly picked up a quarrel with the daughter of the deceased. When the deceased questioned the respondents regarding the same, all the respondents, in furtherance of their common intention, allegedly assaulted her. It is alleged that respondent Nos. 1 and 3 poured kerosene on the deceased, while respondent No. 2 set her ablaze, resulting in extensive burn injuries.

Upon receiving information of the incident, the husband of the deceased immediately took her to the Rural Hospital at Pusad. While undergoing treatment, her statement came to be recorded by the Executive Magistrate, Pusad as dying declaration. As her condition was serious, she was referred to the Government Hospital, Nanded for further treatment. During the course of her treatment at Nanded, two further dying declarations came to be recorded. The second dying declaration was recorded by a Police Head Constable attached to Police Station Vajirabad, Nanded, after obtaining certification from the attending Medical Officer regarding her fitness to make the statement. Subsequently, a third dying declaration was recorded by the Special Judicial Magistrate, Nanded, again after the attending Medical Officer certified that the deceased was conscious, oriented and in a fit condition to give her statement. Despite medical treatment, the deceased succumbed to her burn injuries on 03.12.1998 at about 7.00 a.m. at the Government Hospital, Nanded.

On the basis of the first dying declaration, Crime No.339 of 1998 came to be registered for the offence punishable under Section 307 read with Section 34 of the IPC. During the course of investigation, the Investigating Officer prepared the spot panchnama, recorded the statements of witnesses, arrested the respondents and seized the relevant articles from the spot. Upon the death of the victim, inquest and post-mortem were conducted and, after completion of the investigation, charge-sheet came to be filed against the respondents for the offences punishable under Sections 302, 307 and 341 read with Section 34 of the IPC before the learned Judicial Magistrate First Class, Pusad, who committed the case to the Court of Sessions. After the case was committed to the Court of Sessions, Charge under Section 302 read with Section 34 of the IPC came to be framed against the respondents. The respondents pleaded not guilty and claimed to be tried. Upon appreciation of the oral and documentary evidence on record, the learned trial Court acquitted the respondents, giving rise to the present appeal.

The learned trial Court, upon appreciation of the oral and documentary evidence on record, found that the prosecution had failed to establish the guilt of the respondents beyond reasonable doubt. The learned trial Court observed that the prosecution case rested substantially on the three dying declarations of the deceased, inasmuch as the material witnesses had not supported the prosecution and there was no direct or independent evidence connecting the respondents with the alleged offence. Upon scrutiny, it found that the three dying declarations were not consistent on material particulars relating to the time and manner of the occurrence and the role attributed to the respondents. It further noticed certain infirmities attending the recording of the dying declarations, particularly with regard to the medical certification of the deceased's fitness, the timing of their recording and other surrounding circumstances affecting their reliability. The learned trial Court also found that the prosecution had failed to adduce reliable corroborative evidence in support of the dying declarations and that the defence evidence, viewed in the backdrop of the prosecution evidence, created a reasonable doubt regarding the prosecution version. Holding that the prosecution had failed to establish the charge beyond reasonable doubt, the learned trial Court extended the benefit of doubt to the respondents and acquitted them.

Ms. S.S. Dhote, learned Additional Public Prosecutor for the State/Appellant submitted that the impugned judgment and order of acquittal suffer from serious errors of law and appreciation of evidence and is therefore liable to be set aside. It was contended that the learned trial Court failed to appreciate that the prosecution had established beyond reasonable doubt, that the death of the deceased was homicidal and was the direct consequence of the acts committed by the respondents in furtherance of their common intention.

It was submitted that the prosecution has successfully proved three dying declarations of the deceased, recorded by the Executive Magistrate, Pusad, the Police Head Constable attached to Police Station Vajirabad, Nanded and the Special Judicial Magistrate, Nanded, each of which was recorded after the deceased was certified to be conscious and fit to make her statement.

It was submitted that the first dying declaration is voluntary, truthful and specifically attributes the overt acts of respondent Nos.1 to 3. The learned trial Court, therefore, erred in discarding the same without any justifiable reason. Likewise, the second dying declaration, recorded by the Police Head Constable, was duly supported by the medical endorsement regarding the fitness of the deceased and was wrongly discarded by the trial Court. She further submitted that the third dying declaration, recorded by the Special Judicial Magistrate, was also preceded by due medical certification and inspires confidence. According to the learned Additional Public Prosecutor, the learned trial Court committed an error in refusing to place reliance upon the same.

The learned Additional Public Prosecutor contended that all the three dying declarations are consistent on the material particulars relating to the occurrence and the role attributed to the respondents. The learned trial Court, according to her, attached undue importance to insignificant discrepancies while ignoring their substantive consistency.

She further submitted that a truthful and voluntary dying declaration is sufficient to sustain a conviction even in the absence of independent corroboration. In the present case, the three dying declarations mutually corroborate each other and furnish a complete account of the occurrence. It was, therefore, submitted that the findings recorded by the learned trial Court are contrary to the evidence on record and suffer from misappreciation of material evidence. The impugned judgment of acquittal, therefore, deserves to be set aside and the respondents be convicted for the offence punishable under Section 302 read with Section 34 of the IPC.

Per contra, Mr. P.S. Chawhan, learned Counsel appearing for the respondents/accused, supported the impugned judgment and submitted that the learned trial Court has rightly acquitted the respondents upon proper appreciation of the evidence on record. According to him, the prosecution has failed to establish the charge beyond reasonable doubt and no case is made out warranting interference in an appeal against acquittal.

It was submitted that the entire prosecution case rests upon the three dying declarations of the deceased. However, the said dying declarations suffer from material inconsistencies with regard to the time and manner of the occurrence and the role attributed to the respondents. According to the learned Counsel, the learned trial Court has rightly held that such inconsistent dying declarations cannot safely form the sole basis for conviction. It was further submitted that the prosecution has failed to adduce any direct or independent evidence connecting the respondents with the alleged offence. The material witnesses have not supported the prosecution case and there is no reliable corroborative evidence to lend assurance to the prosecution version.

Learned Counsel further submitted that the dying declarations are surrounded by several infirmities. The manner in which dying declarations were recorded, including the discrepancies regarding the medical certification of the deceased's fitness, the procedure adopted while recording the statements, the obtaining of the thumb impression despite extensive burn injuries and the possibility of external influence, render the said dying declarations unreliable and unsafe to be made the sole basis of conviction. It was also submitted that the investigation suffers from material lapses inasmuch as no scientific or forensic evidence was collected to connect the respondents with the alleged offence and several material witnesses were not examined. According to the learned Counsel, the defence evidence further probabilises the respondents' case and reinforces the reasonable doubt arising from the prosecution evidence.

Learned Counsel lastly submitted that the view taken by the learned trial Court is a reasonable and possible view based on the evidence available on record. It was contended that the prosecution having failed to establish the guilt of the respondents beyond reasonable doubt, the learned trial Court rightly extended the benefit of doubt to the respondents. It was, therefore, submitted that the appeal, being devoid of merit, deserves to be dismissed.

Before proceeding further with the analysis and conclusion, it is apposite to first appreciate and examine the evidence led by the prosecution witnesses. The testimony of the witnesses, along with the material brought on record, requires careful consideration before arriving at any finding.

PW-1 Subhash Manwar, the husband of the deceased, though a material witness, admittedly was not present at the spot at the time of the occurrence, as he had gone out to ply his rickshaw. Upon returning home, he found the deceased in a burnt condition and shifted her to the hospital. Significantly, PW-1 did not support the prosecution case and was, therefore, declared hostile. He categorically deposed that his relations with the deceased as well as those between the deceased and the respondents were cordial, except for occasional verbal exchanges over fetching water. He denied that the deceased had disclosed to him that the respondents had set her on fire.

In his cross-examination, he stated that the deceased became unconscious while being taken to the hospital and remained unconscious thereafter. He further deposed that the thumb impressions of the deceased were taken in his presence and that his mother-in-law had instructed the deceased regarding the statement to be made before the police. Though these assertions are not by themselves conclusive of the defence case, they undoubtedly constitute circumstances which have a bearing on the manner in which the dying declarations are required to be appreciated. His evidence, viewed as a whole, neither supports the prosecution version nor furnishes any independent corroboration to the allegations made against the respondents.

PW-2 Anusaya Manwar, the mother-in-law of the deceased, was examined by the prosecution to establish the circumstances surrounding the incident as well as the alleged oral disclosure made by the deceased. However, she did not support the prosecution case and was declared hostile. According to PW-2, she reached the hospital after being informed of the incident. She categorically denied that the deceased had disclosed to her that the respondents had poured kerosene on her person and set her on fire. She also denied the suggestion that there were frequent quarrels between the deceased and the respondents or that the respondents had assaulted the deceased on the day of the incident. Her evidence, therefore, does not implicate the respondents in the commission of the offence and neither lends support to the prosecution version nor furnishes any independent corroboration to the dying declarations on which the prosecution substantially rests.

PW-3 Raufkhan Mastankhan Pathan, the then Police Inspector, was examined to prove the registration of the crime and the preparation of the spot panchnama. He deposed that on receipt of the first dying declaration from the Rural Hospital, Pusad, he registered Crime No.339 of 1998 and prepared the printed First Information Report (Exh.34). He further deposed that he visited the spot, prepared the spot panchnama (Exh.35) and seized the articles found at the scene, including burnt pieces of clothes and a plastic can smelling of kerosene. In his cross-examination, he admitted that he had not recorded the statement of PW-1 Subhash Manwar at the time of preparing the spot panchnama and could not assign any reason thereof. He also stated that, as reflected in the First Information Report, the time of occurrence was recorded as 9.00 a.m. The evidence of PW-3 is essentially formal in nature and establishes the registration of the offence and the initial steps taken during investigation.

PW 4-Dr. Minal Kutumbe was the Medical Officer attached to the Rural Hospital, Pusad, where the deceased was initially admitted after sustaining burn injuries. She deposed that upon admitting the deceased, she informed the police for recording the dying declaration. On the requisition made by the Executive Magistrate, she examined the deceased and certified that she was in a fit condition to make her statement. She remained present throughout the recording of the first dying declaration and, thereafter, certified that the deceased had remained conscious during the recording. She further stated that the thumb impression of the deceased was not obtained on the first dying declaration as both her hands had sustained burn injuries. In her cross-examination, PW 4 admitted that the deceased had sustained 100% burn injuries and that the bed-head ticket, wherein the treatment administered to the patient was recorded, had not been produced before the Court. She also stated that she did not remember whether any painkiller had been administered to the deceased and admitted that the date and time were not mentioned below her endorsements certifying the fitness of the deceased. Though she denied the suggestion that the deceased was not in a position to make a statement, the aforesaid admissions assume significance while appreciating the evidentiary value of the first dying declaration.

PW 5-Gajanan Shendurkar, the Investigating Officer, deposed that after the death of the deceased, he took over the investigation, recorded the statements of witnesses, arrested the respondents and, upon completion of the investigation, filed the charge-sheet. He further stated that after receiving the intimation regarding the death of the deceased, the offence came to be altered from Section 307 to Section 302 of the IPC. In his cross-examination, he admitted that though a plastic can smelling of kerosene had been seized during the spot inspection, no attempt was made to obtain fingerprints from the said can, nor were the fingerprints of the respondents obtained for comparison. He further admitted that no explanation was forthcoming in the case diary for not undertaking such investigation. The evidence of PW 5 establishes the course of investigation; however, the omissions admitted by him assume relevance while assessing the completeness of the investigation conducted by the prosecution.

PW 6-Dr. Hemant Godbole, the Medical Officer, who conducted the post-mortem examination of the deceased along with Dr. Kajave, deposed that the body was referred by Vajirabad Police Station, Nanded and that the post-mortem examination was conducted on the same day. He proved the post-mortem report (Exh.55) and stated that, except for the extensive burn injuries noted therein, no other significant external injuries were found on the body of the deceased. According to him, the deceased had sustained extensive ante-mortem burn injuries and the cause of death was shock due to burns. In his cross-examination, he stated that both the upper limbs of the deceased were completely burnt up to the fingertips. Nothing further was elicited in his cross-examination to discredit his testimony or the findings recorded in the post-mortem report. The evidence of PW 6 thus establishes the cause of death of the deceased. However, his evidence is confined to the medical cause of death and does not throw any light on the manner in which the burn injuries were sustained or the identity of the person responsible for causing them.

PW 7-Sahebrao Kolhe was examined as a panch witness to the spot panchnama (Exh.35). He deposed that on 30.11.1998, he was called by the police to the house of the deceased at Ambedkar Ward, Pusad, where he noticed burnt pieces of clothes, household articles lying scattered and a plastic can emitting the smell of kerosene. He stated that the said articles were seized under the spot panchnama, which he identified before the Court. In his cross-examination, nothing material was elicited to discredit his testimony except a suggestion that he was a stock panch witness, which he denied. The evidence of PW 7 corroborates the preparation of the spot panchnama and the seizure of articles from the place of occurrence.

PW 8-Gulab Champarao Gondane, the then Naib-Tahsildar, Pusad, was examined to prove the first dying declaration (Exh.65). He deposed that, upon receiving a requisition from the police, he visited the Rural Hospital, Pusad, where the deceased was admitted. After obtaining a medical opinion regarding the fitness of the deceased to make a statement, he recorded her dying declaration in question-and-answer form in the presence of the Medical Officer. He stated that both the hands of the deceased had sustained burn injuries and, therefore, her thumb impression could not be obtained on the dying declaration. According to him, after recording the statement, he again obtained the endorsement of the Medical Officer certifying that the deceased remained conscious throughout the recording of the statement, whereafter the dying declaration was forwarded to the concerned police station in a sealed envelope.

In his cross-examination, PW 8 admitted that there was an overwriting in the time mentioned on the requisition, which was not initialled by him. He further admitted that the dying declaration was recorded on a printed form originally bearing the name of another officer, which was subsequently scored out and replaced with his name. He also stated that, according to the deceased, the incident had occurred at about 9.00 a.m. Though he denied the suggestion that the dying declaration was falsely recorded at the instance of the police, the aforesaid admissions form part of the circumstances surrounding the recording of the first dying declaration and are required to be considered while appreciating its evidentiary value.

PW 9-Narayan Badatkar, the then Special Judicial Magistrate, Nanded, was examined to prove the third dying declaration (Exh.71). He deposed that, on receiving a requisition from the police, he visited the Government Hospital, Nanded, where the deceased was undergoing treatment. After obtaining the opinion of the Medical Officer regarding the fitness of the deceased to make a statement, he recorded her dying declaration in question-and-answer form. According to him, the deceased stated that the incident had occurred at about 11.30 a.m. and implicated the respondents in the commission of the offence. He further deposed that, after recording the statement, he obtained the thumb impression of the deceased and thereafter secured the endorsement of the Medical Officer certifying that the deceased remained conscious throughout the recording of the statement. During his cross-examination, PW 9 admitted that when he initially reached the ward, about two to three relatives of the deceased were present near her bed and that he requested them to move away before recording the statement. He further admitted that he had not specifically mentioned in the dying declaration that the relatives were asked to leave the ward prior to recording the statement. He also stated that, despite the burn injuries sustained by the deceased, her thumb impression was obtained on the dying declaration. Though he denied the suggestion that the deceased was not in a fit condition to make a statement or that the dying declaration was recorded at the instance of the relatives, these admissions form part of the circumstances attending the recording of the third dying declaration and assume relevance while evaluating its evidentiary value.

PW 10-Pandurang Kelkar, Police Head Constable attached to Police Station Vajirabad, Nanded, was examined to prove the second dying declaration (Exh.74). He deposed that, after obtaining the Medical Officer's certification regarding the fitness of the deceased, he recorded her dying declaration and thereafter obtained the Medical Officer's endorsement certifying that she remained conscious during its recording. He further stated that the thumb impression of the deceased was obtained on the dying declaration. In his cross-examination, he denied the suggestions that the deceased was not in a fit condition to make the statement or that the dying declaration had been recorded at the instance of her relatives. His evidence establishes the recording of the second dying declaration and is required to be appreciated along with the other dying declarations relied upon by the prosecution.

PW 11-Dr. Pashu Sheikh was examined to prove the medical certification regarding the fitness of the deceased at the time of recording the second and third dying declarations. He deposed that, while attached to the Government Hospital, Nanded, he examined the deceased on the requisition made by the police as well as the Special Judicial Magistrate and, on finding her conscious and fit to make a statement, issued the requisite endorsements. He further stated that he remained present during the recording of both the dying declarations and, upon their completion, certified that the deceased had remained conscious throughout the recording of the statements.

In his cross-examination, PW 11 admitted that the deceased had sustained extensive burn injuries and that she had been administered treatment, including painkillers. He further admitted that, prior to issuing the fitness certificates, he had not made any separate entry in the case papers regarding the mental condition of the deceased and that the case papers had not been produced before the Court. He, however, denied the suggestion that the deceased was not in a fit condition to make to the medical fitness of the deceased at the time of recording the second and third dying declarations and is required to be appreciated along with the evidence of the Magistrates and the Police Head Constable who recorded the said declarations.

The accused/respondents had examined two witnesses in support of their case. DW 1-Komal d/o Subhash Manwar, the daughter of the deceased, was examined on behalf of the defence. Before recording her evidence, the learned trial Court satisfied itself regarding her competence to depose. She stated that on the date of the incident she had gone to school in the morning and, thereafter, had gone out for selling papad. According to her, when she returned home between 2.00 p.m. and 3.00 p.m., she found her mother in a burnt condition, while her father was extinguishing the fire. She further stated that the deceased was thereafter shifted to the hospital in an autorickshaw. Significantly, she did not attribute any role to the respondents in the incident and stated that there was no quarrel between her family and the respondents. Her evidence indicates that she was not present at the time of the occurrence and, therefore, is not an eyewitness to the incident. Nevertheless, her testimony does not lend support to the prosecution case regarding the existence of any immediate quarrel or the involvement of the respondents in the occurrence.

DW 2-Gauribi w/o Jumma Navragabadi, a neighbour of both the deceased and the respondents, deposed that she used to sit on the platform in front of the house of the deceased for selling papad and that on the date of the incident she was present there from about 11.00 a.m. to 2.30 p.m. According to her, the deceased came out of the house in a burnt condition and was subsequently taken to the hospital. She stated that during the period she remained present near the house, none of the respondents were present at the spot and she had neither witnessed any quarrel between the deceased and the respondents nor any dispute regarding fetching of water. In her cross-examination, she admitted that she was not aware of the events which had occurred before 11.00 a.m. or after 2.30 p.m. Her evidence, therefore, is confined to the period during which she claims to have been present near the place of occurrence. The testimony of DW 2 constitutes a circumstance which is required to be considered along with the other evidence on record while appreciating the prosecution case.

Having considered the rival submissions and upon re-appreciation of the entire evidence on record, the principal question which arises for determination is whether the judgment of acquittal passed by the learned trial Court suffers from such perversity or manifest illegality as to warrant interference in the exercise of appellate jurisdiction. The legal position governing appeals against acquittal is well settled. In Chandrappa and others v. State of Karnataka, (2007) 4 SCC 415, the Hon'ble Supreme Court authoritatively summarised the principles governing such appeals and held that though the appellate Court possesses full power to re-appreciate the evidence, interference with an order of acquittal is warranted only where the view taken by the trial Court is shown to be manifestly erroneous, perverse or wholly unsustainable in law. If the view adopted by the trial Court is a reasonably possible view on the evidence available on record, the mere existence of another possible view would not justify reversal of the acquittal. The relevant paragraph no. 42 of the said judgment is reproduced as under:

Equally settled are the principles governing the evidentiary value of a dying declaration. A dying declaration constitutes substantive evidence and, if found to be voluntary, truthful and wholly reliable, can by itself form the basis of conviction without the necessity of independent corroboration. At the same time, before acting upon such a declaration, the Court must be satisfied that it was made in a fit physical and mental condition and was free from tutoring, prompting or any other suspicious circumstance. In Laxman v. State of Maharashtra, (2002) 6 SCC 710, the Constitution Bench of the Hon’ble Apex Court held that medical certification regarding the fitness of the maker, though a rule of prudence, is not an absolute requirement and that the ultimate satisfaction regarding the voluntariness and truthfulness of the declaration must be that of the Court.

The Courts have time and again reiterated that where the prosecution relies upon multiple dying declarations, the Courts must carefully examine whether they are consistent on material particulars. Minor discrepancies, attributable to lapse of time or variation in narration, would not by themselves render a dying declaration unreliable. However, where the inconsistencies relate to the genesis of the occurrence, the manner of the incident or the role attributed to the accused, the declarations must be scrutinised with greater caution. More recently, in Irfan @ Naka v. State of Uttar Pradesh, 2023 SCC OnLine SC 1060, the Hon'ble Supreme Court emphasised that while a dying declaration is undoubtedly a substantive piece of evidence, its reliability has to be tested not only from its contents but also in the light of the surrounding circumstances attending its recording. The Court further observed that, where there are multiple dying declarations, each declaration must be examined independently as well as collectively with corroborative evidence to ascertain whether they present a consistent, voluntary and trustworthy account of the occurrence. The relevant paragraph nos. 62, 63 and 64 of the said judgment are reproduced as under:-

The prosecution case, in the present matter, rests almost entirely upon the three dying declarations allegedly made by the deceased, there being no eyewitness to the occurrence and the material witnesses having not supported the prosecution case. The correctness of the findings recorded by the learned trial Court would, therefore, necessarily depend upon whether the said dying declarations inspire such confidence as to constitute a safe foundation for conviction and whether the surrounding circumstances furnish adequate assurance regarding their voluntariness and truthfulness.

It is an admitted position that there is no eyewitness to the occurrence. PW 1-Subhash Manwar, the husband of the deceased, was not present at the spot at the relevant time and, therefore, his evidence does not throw any light on the actual incident. Similarly, PW 2-Anusaya Manwar, the mother-in-law of the deceased, did not support the prosecution and denied that the deceased had disclosed to her that the respondents were responsible for setting her on fire. The remaining prosecution witnesses are either official witnesses connected with the investigation or witnesses concerned with the recording of the dying declarations. Thus, in the absence of any direct ocular evidence or any substantive oral evidence implicating the respondents, the prosecution case substantially rests upon the evidentiary value of the three dying declarations at Exhibits 65, 71 and 74. It is, therefore, necessary to examine whether the said dying declarations are consistent, voluntary and reliable so as to constitute the sole basis for conviction.

A careful examination of the three dying declarations reveals that they are not entirely consistent on material particulars. The first dying declaration (Exhibit 65), recorded by the Executive Magistrate, attributes specific overt acts to respondent Nos.1 to 3 and states that the deceased stated that the incident occurred at about 9.00 a.m. However, the subsequent dying declaration recorded by the Special Judicial Magistrate (Exhibit 71) records the time of occurrence as about 11.30 a.m. The declarations also differ with regard to the narration of the incident, the sequence in which the occurrence unfolded and the circumstances leading thereto. These discrepancies are not confined to peripheral details attributable to lapse of time or differences in narration They relate to the genesis of the occurrence and the manner in which the prosecution seeks to establish the participation of the respondents. Such inconsistencies assume significance, particularly when the prosecution case is founded exclusively upon the dying declarations and there is no independent eyewitness or other substantive evidence lending assurance to their correctness. While minor inconsistencies do not affect the evidentiary value of a dying declaration, inconsistencies touching the core of the prosecution case require the Court to exercise greater caution before treating such declarations as the sole basis for conviction. In the facts of the present case, the material inconsistencies noticed above considerably diminish their evidentiary value and justify the cautious approach adopted by the learned trial Court.

Apart from the inconsistencies in their contents, the circumstances attending the recording of the dying declarations also require careful scrutiny. The evidence of PW 4, PW 8, PW 9, PW 10 and PW 11, when read together, discloses certain circumstances which cannot be ignored while evaluating their reliability. PW 8 admitted unexplained overwriting in the requisition relating to the first dying declaration and also admitted that the declaration was recorded on a printed form originally bearing the name of another officer. PW 4 admitted that the deceased had sustained 100% burn injuries, that the bed-head ticket had not been produced before the Court and that the endorsements regarding the fitness of the deceased did not mention the date and time. The evidence of PW 9 and PW 10 further indicates that thumb impressions of the deceased were obtained on the subsequent dying declarations despite the evidence that both her upper limbs had sustained extensive burn injuries. None of these circumstances, viewed in isolation, may by themselves be sufficient to discard the dying declarations. Though each of these circumstances, viewed in isolation, may not be sufficient to discard the dying declaration, they cannot be ignored while assessing its overall reliability. Viewed from that perspective, these circumstances assume relevance while assessing whether the declarations inspire complete confidence.

Likewise, the medical evidence also does not present an entirely satisfactory picture. PW 4 admitted that the deceased had sustained 100% burn injuries and that the bed-head ticket, containing the details of the treatment administered, was not produced before the Court. Consequently, there is no contemporaneous medical record indicating whether pain-relieving medication or sedatives had been administered to the deceased before the recording of the statement. PW 11 also admitted that the deceased had earlier been declared unfit to make a statement and that no post-recording endorsement regarding her continued fitness was obtained after one of the dying declarations was recorded. The medical evidence adduced by the prosecution undoubtedly establishes that the deceased sustained extensive ante-mortem burn injuries and succumbed to shock resulting therefrom. However, the medical evidence is confined to establishing the cause of death and does not, by itself, establish that the burn injuries were homicidal or that they were inflicted by the respondents. As observed earlier, the prosecution was required to establish not merely the factum of death but also the complicity of the respondents beyond reasonable doubt.

Further, the evidence of PW 9 and PW 10 indicates that, despite extensive burn injuries to both hands, thumb impressions were allegedly obtained on the subsequent dying declarations. These circumstances may not, by themselves, render the dying declarations inadmissible; nevertheless, when considered cumulatively with the material inconsistencies noticed in their contents, they certainly justify a cautious approach while evaluating their evidentiary worth. In the considered view of this Court, the learned trial Court cannot be faulted for treating these circumstances as creating a reasonable doubt regarding the implicit reliability of the dying declarations.

Another circumstance which cannot be overlooked is that the evidence on record indicates that relatives of the deceased were present in the hospital before the recording of the subsequent dying declarations. PW 9 himself admitted that when he reached the ward, relatives of the deceased were present near her bed and that they were asked to move away before the statement was recorded. PW 1, in his evidence, also stated that his mother-in-law had instructed the deceased regarding the statement to be made before the police. It is true that there is no direct evidence establishing that the deceased was in fact tutored or influenced. Equally true is the principle that the mere presence of relatives would not, by itself, render a dying declaration unreliable. However, where the prosecution seeks to sustain a conviction solely upon multiple dying declarations, the Court is required to be satisfied that they are wholly voluntary and free from every reasonable suspicion. The presence of relatives before the recording of the subsequent declarations, when considered together with the delay in recording those declarations and the other circumstances noticed hereinabove, constitutes an additional factor requiring cautious scrutiny.

The aforesaid infirmities assume greater significance in view of the absence of any independent corroborative evidence. Admittedly, there is no eyewitness to the occurrence. PW 1, the husband of the deceased, was not present at the spot when the incident occurred and his evidence is confined to the events subsequent thereto. PW 2, the mother-in-law of the deceased, also did not support the prosecution case and denied that the deceased had made any oral disclosure implicating the respondents. Thus, the prosecution has been left without any substantive oral evidence corroborating the allegations contained in the dying declarations. It is true that corroboration is not a rule of law where a dying declaration is found to be wholly reliable. However, where the Court entertains doubt regarding its intrinsic reliability, the absence of corroborative evidence assumes considerable importance. In the present case, the material witnesses have failed to lend any assurance to the prosecution version and, therefore, the dying declarations necessarily have to be evaluated with greater circumspection.

The defence evidence, though not required to establish an alternative version with the same degree of certainty as expected from the prosecution, cannot be altogether ignored while appreciating the probabilities emerging from the record. DW 1, the daughter of the deceased, did not attribute any role to the respondents and deposed that there was no quarrel between the families, but from the dying declarations it was observed that the deceased stated that the quarrel started because of her daughter and that the respondents mistreated her. This creates doubt regarding the prosecution story as DW 1’s evidence does not corroborate this stance. More significantly, DW 2, an independent neighbour, deposed that during the period she remained near the house, she did not notice the presence of any of the respondents at the spot. Though her testimony may not conclusively establish the manner in which the incident occurred, it undoubtedly constitutes a circumstance which reinforces the doubt already arising from the prosecution evidence. The learned trial Court has considered the defence evidence only to the limited extent of examining whether it renders the prosecution version doubtful. Such an approach, in the opinion of this Court, cannot be said to be either unreasonable or contrary to law.

It is also pertinent to note that the investigation did not yield any scientific or forensic evidence connecting the respondents with the alleged offence. Though a plastic can smelling of kerosene was seized from the spot, the Investigating Officer admitted that the same was not subjected to fingerprint examination and no other scientific evidence was collected to corroborate the prosecution version. Though such evidence may not always be indispensable, its absence assumes significance.

Upon a cumulative consideration of the entire evidence, this Court finds that the prosecution case suffers from several infirmities, namely, the absence of direct evidence, the failure of the material witnesses to support the prosecution, the material inconsistencies in the three dying declarations, the circumstances attending their recording and the absence of any independent evidence lending assurance to their correctness and omissions by investigation authorities. Each of these circumstances, viewed individually, may not have been sufficient to discredit the prosecution case. However, when considered collectively, they create a reasonable doubt regarding the involvement of the respondents in the commission of the offence. The view taken by the learned trial Court, therefore, cannot be said to be either perverse or wholly unreasonable. On the contrary, it represents a possible and plausible appreciation of the evidence on record. Once such a conclusion is reached, the settled principles governing appeals against acquittal require this Court to refrain from substituting its own view merely because another view may also be possible.

In view of the foregoing discussion, this Court is of the considered opinion that the prosecution has failed to establish that the findings recorded by the learned trial Court suffer from perversity, manifest illegality or misappreciation of evidence so as to warrant interference in an appeal against acquittal. Upon an independent re-appreciation of the entire evidence, this Court finds that the prosecution has not succeeded in proving the guilt of the respondents beyond reasonable doubt. The view taken by the learned trial Court, based on the material inconsistencies in the dying declarations, the circumstances attending their recording, the absence of any independent corroborative evidence and the overall evidence on record, is a possible and plausible view. In such circumstances, the settled principles governing appeals against acquittal require this Court to refrain from substituting its own opinion merely because another view may also be possible. Consequently, the judgment and order of acquittal passed by the learned trial Court calls for no interference. Hence, the following order: