P.V.HARDAS,J. - (1.)THE appellant, who stands convicted for an offence punishable u/s 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs.2000/- with default stipulation of undergoing further Rigorous Imprisonment for 3 months, by the Sessions Judge, Latur, by judgment dated July 10, 2008, in Sessions Case No.64/2006, by this appeal challenges his conviction and sentence.
(2.)SUCH of the facts, as are necessary for the decision of this appeal, may briefly be stated thus- PW7, ASI Suryaji Nagargoje, who was attached to Shivaji Nagar police station, received a communication at Exhibit-36 from PW-5, Dr.Rajput on 21.05.2006 regarding admission of one Reshma, wife of the present appellant, in the Hospital. Reshma had been admitted in the hospital on account of burns. Accordingly, at 9 p.m. PW-7 ASI Nagargoje visited the Hospital of Dr.Rajput and ascertained from Dr.Rajput regarding the condition of Reshma. PW-5 Dr.Rajput opined that Reshma was in a fit condition to give her statement and accordingly statement of Reshma at Exhibit-42, came to be recorded. The statement was thereafter read over to Reshma. Reshma admitted the contents to be correct. Her toe impression was obtained on the said statement. Endorsement of PW-5 Dr.Rajput was obtained on the statement of Reshma at Exhibit-42. After recording the statement, PW-7, ASI Nagargoje contacted the Special Executive Magistrate and issued a letter of request for recording the dying declaration of Reshma. According to PW-7, ASI Nagargoje, PW-4 Jyoti Chavan, Naib Tahsildar, proceeded to the Hospital and recorded statement of injured at Exhibit-33. It appears that on the basis of the statement of Reshma at Exhibit-42, an offence vide Crime No.97/2006 was registered u/s 307 of the Indian Penal Code. Investigation of Crime No.97/2006 was entrusted to PW-8 Police Inspector Mundhe. It appears that Reshma, who had sustained burn injuries, succumbed to her injuries and accordingly inquest Panchanama and Spot Panchanama came to be drawn, statements of the witnesses came to be recorded on 10.06.2006 and the seized articles were forwarded to the Chemical Analyzer along with requisition at Exhibit-18. Post Mortem on the dead body of deceased Reshma came to be conducted by PW-2, Dr.Gulve. PW-2 Dr.Gulve noticed that Reshma had sustained 94% burns. He also noticed that the brain was congested so also all the internal organs were congested. He, therefore, opined that cause of death of Reshma was 94% superficial to deep burns causing septicemic injury. The Post Mortem report is at Exhibit-27. Further to the completion of the investigation, a charge sheet against the present appellant came to be filed. On committal of the case to the Court of Sessions, learned trial court, vide Exhibit9, framed charge against the appellant for offence punishable u/s 302 of the Indian Penal Code. The appellant-accused abjured his guilt and claimed to be tried. Prosecution, in support of its case, examined 8 witnesses and placed strong reliance on the dying declaration at Exhibit-33, recorded by PW-4 Jyoti Chavan and the dying declaration at Exhibit-42, recorded by PW-7 ASI Nagargoje. Trial Court rejected the testimony of PW-4 Jyoti Chavan and accepted the dying declaration at Exhibit-42 and accordingly convicted and sentenced the appellant.
In order to effectively deal with submissions advanced before us by Smt.S.S.Jadhav, learned counsel for the appellant and Shri.D.R.Kale, learned APP for the State, it would be useful to refer to the evidence of the prosecution witnesses. PW-4 Jyoti Chavan-Naib Tahsildar states about proceeding to the hospital and recording the statement so also about obtaining the toe impression of injured Reshma. PW-5, Dr.Rajput, brother of the appellant, in no uncertain terms, has admitted that Jyoti Chavan had never came to the Hospital for recording dying declaration of Reshma. He has further admitted that PW-6 Mosami, daughter of the appellant and deceased Reshma, had informed him that Reshma had set herself ablaze. PW-5 Dr.Rajput further states that on being questioned, Reshma had stated that she was frustrated on account of addiction of the appellant to alcohol and had committed suicide. The trial Court came to the conclusion that in the face of evidence of PW5 Dr.Rajput, who had not been declared hostile and cross-examined by the prosecution, after he was cross-examined by the accused, clearly establishes that PW-4 Jyoti Chavan had not gone to the Hospital for recording statement of injured Reshma. The trial Court further found that the dying declaration at Exhibit33 was not in the hand writing of PW-4 Jyoti Chavan, but it was in the hand writing of her Clerk, by name Shri.Sapkal. The prosecution had chosen not to examine the said Clerk. The circumstances, therefore, raised a suspicion about the genuineness of the dying declaration at Exhibit-33 and the trial court, therefore, chose not to rely on the same.

The prosecution had examined PW-7 ASI Nagargoje, who states about proceeding to the Hospital for recording the dying declaration after obtaining the endorsement of Dr.Rajput regarding fitness of Reshma to give statement. He further states about registration of offence on the basis of statement of Reshma at exhibit-42.

(3.)MRS.Jadhav, learned counsel for the appellant has urged before us that PW-7 ASI Nagargoje has not proved the contents of the dying declaration at Exhibit-42 and, therefore, according to the learned counsel for the appellant, the aforesaid dying declaration cannot be made the foundation for basing the conviction of the appellant. Learned counsel for the appellant has placed reliance on the Division Bench Judgments of this Court in "Deorao Sonbaji Bhalerao & Anr. Vs. State of Maharashtra" 2008 ALL MR (Cri) 1921, "Jivan Tulsiram Dhavali & Anr Vs. State of Maharashtra" 2008 ALL MR (Cri) 2018, "Laxmibai Maruti Satpute & Ors Vs. State of Maharashtra" 2010 ALL MR (Cri) 182 and "Faizal Mohammed s/o Abdulla Banaim Vs. State of Maharashtra" 2010 ALL MR (Cri) 2241. The ratio of the aforesaid judgments is that it is incumbent on the prosecution to prove the contents of the dying declaration and the scribe has to depose as to the contents of the dying declaration. In absence of such evidence, the aforesaid dying declaration cannot be made basis for sustaining the conviction of the appellant. In the present case also, we find that PW-7 ASI Nagargoje has not deposed about what was told to him or narrated to him by injured Reshma in the Hospital. All that he states is that he had recorded statement of Reshma and had obtained toe impression of Reshma on the said statement. Beyond that, PW-7 ASI Nagargoje does not state anything more which would assist the prosecution in proving the contents of the statement of Reshma at Exhibit-42. Undisputedly, statement of Reshma at Exhibit-42 is the dying declaration admissible u/s 32 (1) of the Indian Evidence Act and as Reshma has succumbed to her injuries, however, since the contents are not proved, the aforesaid dying declaration at Exhibit-42 cannot be made the foundation for sustaining the conviction u/s 302 of the Indian Penal Code.
The trial Court has already disbelieved the evidence of PW-4 Jyoti Chavan and consequently had chosen not to place any reliance on the dying declaration at Exhibit-33. We find that no reliance at all can be placed on the dying declaration at Exhibit-42. Consequently, we find that apart from the dying declaration, the prosecution had examined PW-6 Mosami and PW-3 Anuja, to whom, the prosecution alleged that, Reshma had made certain disclosure in relation to the transaction which resulted in her death. Both the witnesses i.e. PW3 Anuja and PW-6 Mosami, did not support the prosecution and were declared hostile. Nothing worthwhile has been elucidated in their cross-examination on behalf of the prosecution. The entire prosecution case, therefore, is bereft of reliable evidence, which would establish the offence against the appellant beyond reasonable doubt. PW-1 Rahulsingh, brother of deceased Reshma, speaks about previous ill-treatment. However, the evidence of PW-1 would, at the most, furnish motive for the appellant to have committed the crime. In the absence of any evidence to indicate that it was the appellant who had set deceased Reshma ablaze, the conviction of the appellant cannot be sustained.