1. This is an appeal by the State challenging the order of acquittal of the accused who was tried by the Additional Sessions Judge, Aurangabad for committing the murder of his wife Nandabai by setting fire to her clothes after pouring kerosene on her, on the night between 13th and 14th May 1974.
2. A few relevant facts leading to the prosecution may be stated thus : The deceased Nandabai was the wife of the accused Asaram. They were married about five years prior to the incident. The accused is a resident of village Manoor, while the parents of the deceased are from the village Pokheri. It appears that after the marriage, both Nandabai and the accused were staying with her parents at their house at Pokheri, According to the prosecution, the deceased Nandabai and her sister Sakhrabai, who is a young girl of 13 years, were both sleeping on the ota of the house, and the incident took place at about 2 a. m. Sakhrabai who was examined by the prosecution turned hostile and was cross-examined by the prosecution. She did not support the case of the prosecution against the accused. In her evidence Sakhrabai stated that she did not know how Nandabai sustained burns nor did she ask her as to how she had received the burns. Admittedly, there was no eyewitness to the incident, The prosecution, therefore, relied on circumstantial evidence and the evidence in the form of oral and written dying declarations of the deceased. The learned Additional Sessions Judge did not consider it safe to rely on the said dying declarations with the result that he acquitted the accused. It is this order of acquittal which has been challenged by the state before us,
3. Mr. Kamat, the learned Public Prosecutor, fairly conceded before us that the prosecution case against the accused rests solely on the oral and written dying declarations brought on record and he took us through the relevant evidence. The oral dying declaration is deposed to by Appa (P. W. 7). the for other of the deceased. In his examination-in-chief, he stated that on the night of the incident he had gone to the threshing-floor after taking night meals. At about mid-night, the accused himself came to the threshing-floor and told him that Nandabai was burnt. He, therefore, accompanied the accused to his house. He found Nandabai with burn-injuries on her person in the front room. According to him, he asked her as to what had happened and she told him that her husband had burnt her and then she said, 'My husband burnt me'. According to him, she repeated this two or three times. But in his examination-in-chief itself, he retracted from what he said earlier and stated that Nandabai did not say 'My husband has burnt me', but what she stated was 'Melyane jalale' which means that 'the cursed one burnt me'. In his cross-examination he admitted that in spite of her being asked as to what had happened, she did not name anybody as having burnt her. In this state of evidence, it is not possible for us to accept the testimony of Appa. We find his evidence to be wholly unreliable.
4. The next piece of evidence is the dying declaration (Ex. 16) recorded by Shri Deshpande, the Taluka Executive Magistrate (P. W. 5). We find that there are several infirmities which make the dying declaration recorded by this witness suspect and unreliable. The dying declaration (Ex. 16) recorded by Shri Deshpande is in the narrative form and not in the question and answer form. There is an endorsement made by Dr. Nadkarni to the effect that the patient was fully conscious and was in a fit condition to give the dying declaration. Shri Deshpande has stated in his examination-in-chief that Nandabai made the statement before him in the presence of the doctor and he recorded in writing as per her say. This statement of Shri Deshpande has been clearly contradicted by Dr. Nadkarni, who has made the endorsement below the dying declaration that the patient was fully conscious and was in a fit condition to give the dying declaration. In his cross-examination, Dr. Nadkarni in terms admitted that he was not present when the Executive Magistrate recorded the dying declaration of Nandabai. He plainly admitted that after recording the dying declaration, Ex. 16, it was brought to him and then he made the endorsement on it about the physical and mental condition of the deceased. In view of this glaring contradiction, we do not think it safe to rely on the dying declaration recorded by the Executive Magistrate,
5. The third piece of evidence is the history of the patient purported to have been recorded in the medico-legal register by Dr. Nadkarni. On going through the case-papers, we find that there is no clear statement that the information recorded was supplied by Nandabai to Dr. Nadkarni. What is stated in the case-papers is 'H.O. Alleged to have been burnt by her husband yesterday night at 11 p. m.'. It is quite possible that this information might have been given by some other person and not by Nandabai herself. In his cross-examination, Dr. Nadkarni stated that he had asked Nandabai all the questions in Marathi and transcribed the replies given by her in English and noted the translation on the case paper. Dr. Nadkarni has not recorded the information in question and answer form, nor has he dearly stated in the case-papers that the statement involving her husband was made by the deceased herself. The history recorded in the case-papers by Dr. Nadkarni, therefore, cannot be treated as a dying declaration of the deceased. The record made in the case will, therefore, have to be excluded from consideration. It would thus be clear that the so-called dying declarations on which reliance has been placed by the prosecution are not reliable. There being no other satisfactory evidence led by the prosecution against the accused, the learned Judge was Justified fin acquitting the accused and recording an order of acquittal in his favour.
6. The appeal, therefore, fails and is dismissed. The accused to be set at liberty forthwith, if not wanted In any other case.