- (1.) The appellants before us were charged for offences punishable under Ss. 306 and 498-A read with S. 34 of the Indian Penal Code. The trial Court relying on an alleged dying declaration said to have been made by the deceased acquitted the appellants of all charges. In appeal the High Court of Judicature at Bombay by the impugned judgment has set aside the said judgment of acquittal and convicted the appellants for offences punishable under S. 306, I.P.C. and directed them to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 5,000/- each in default of fine to undergo further rigorous imprisonment for a period of one year. It also convicted the appellants for the offence punishable under S. 498-A of I.P.C. and sentenced them to undergo rigorous imprisonment for three years and to pay a fine of Rs. 5,000/- each in default of payment to undergo rigorous imprisonment for six months. It further directed the substantive sentences to run concurrently.
(2.) Prosecution case briefly stated is as follows : Deceased-Mina was married to first appellant on 27-4-1982. According to the prosecution, right from the day of marriage deceased was ill-treated on account of non-payment of sufficient dowry and also because of her black complexion. According to the prosecution, she was beaten and ill-treated during her stay in her matrimonial house. In the month of January, 1983, the parents of the deceased received a telegram from appellant No. 1 inquiring whether the deceased had come to their house. On receipt to this telegram the deceased's-brother (P.W. 3) went to the house of appellant where he learnt that the deceased had left her matrimonial home and was living in the house of one Sarode Palathi in a very bad condition. According to her brother, the deceased was almost in a semi dead condition, during this meeting she told him about the cruel treatment meted out to her by the appellants and also about the beatings received by her. Deceased, therefore, requested her brother to take her back to her parental house, accordingly, P.W. 1 brought her back to his parents house. It is the prosecution case that after staying for about 7 or 8 months with her parents deceased filed a petition for maintenance under S. 125 of the Criminal Procedure Code. The above said maintenance petition came to be decided in favour of the deceased in March, 1985 but in spite of the order of the Court the first appellant did not pay the maintenance ordered by the Court, instead on 16th February, 1986 he approached the parents of the deceased and requested them to send the deceased to his house on the pretext of Satyanarayan Puja being performed in their house. It is on this request, the deceased was sent to matrimonial home on 16-2-1986. On 28-4-1986 the deceased suffered severe burn injuries which was to the extent of 94%, consequent to which she died on the next day in the hospital at Nashik. It is the prosecution case that while deceased was being removed to the Civil Hospital one Kantilal went to Yoela Police Station and gave information about the incident in regard to which an entry was made in the Station register thereafter a case of accidental death was registered as per FIR Exhibit 14. After further investigation charge-sheet was filed against the appellants for offences under S. 306 read with Ss. 34 and 498-A read with S. 34, as stated above. During the course of trial, the prosecution examined 8 witnesses out of which P.Ws. 1, 2 and 3 spoke about the ill-treatment meted out to the deceased as also to the factum of she being driven to suicide because of the acts of the accused persons.
(3.) During the course of trial, something peculiar happened, notice of which was taken by the High Court. It was not the case of the prosecution that the deceased had made any dying declaration but the doctor (P.W. 5), who conducted the post-mortem, when in the witness-box, replied to a question which was posed to him during the cross-examination stating that a dying declaration was made by the deceased when she was in the hospital. Even though this doctor was not the doctor treating the patient, the said doctor answered the said question by admitting the suggestion made on behalf of the accused that the deceased had made a dying declaration. At that stage, on behalf of the defence an application Ext. 39 was made calling upon the prosecution to produce the said dying declaration which was allegedly made by the deceased on 28th of April, 1986. On 26th of November, 1986, a dying declaration marked as Ex. 40 was admitted into the evidence by the learned trial Judge, the source of production of this document is neither mentioned in the judgment of the trial Court, nor any evidence was led as to the proof of this document. The trial Court in its judgment brushing aside all the evidences led by the prosecution relying on the so-called dying declaration acquitted the accused persons of all the charges framed against them.;