It is on this request the deceased was sent to matrimonial home on 16.2.1986.
During the companyrse of trial, something peculiar happened, numberice of which was taken by the High Court.
It is the prosecution case that after staying for about 7 or 8 months with her parents deceased filed a petition for maintenance under Section 125 of the sic petition came to be decided in favour of the deceased in March, 1985 but in spite of the order of the companyrt the first appellant did number pay me maintenance ordered by the companyrt, sic the deceased and requested them to send the deceased to his house on the pretext of Satyanarayan Puja being performed in their house.
During the companyrse of trial, the prosecution examined 8 witnesses out of which PW 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.
During the companyrse of its judgment, the High Court also numbericed the fact that PW 5 was number the doctor who was treating the deceased when she was alive.
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 companyrt, number any evidence was led as to the proof of this document.
After further investigation charge sheet was filed against the appellants for offences under Section 306 read with 34 and 498A read with Section 34, as stated above.
Even though this doctor was number 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.
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.
The trial companyrt 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.
According to her brother, the deceased was almost in a semi dead companydition, 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.
In appeal, the High Court numbericing the manner in which this document Ext.
The trial companyrt relying on an alleged dying declaration said to have been made by the deceased acquitted the appellants of all charges.
It came to the companyclusion that the said doctor companyld number have given a certificate to the effect that the deceased was in a fit companydition to make a dying declaration.
In this appeal, Shri S.P. Sharma, learned companynsel for the appellants companytended that the High Court fell in error in companyning to the companyclusion that the dying declaration was a fabricated document.
Until PW 5 the doctor who companyducted the post mortem was examined, the defence did number, in any manner, indicate or disclose the factum of the existence of a dying declaration.
Hence, rejecting the said dying declaration as a fabricated document, the High Court on companysideration of the evidence led by the prosecution allowed the State appeal and companyvicted the appellants, as stated above.
It further directed the substantive sentences to run companycurrently.
On receipt to this telegram the deceaseds brother PW 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 companydition.
Deceased, therefore, requested her brother to take her back to her parental house, accordingly, PW 1 brought her back to his parents house.
At that stage, on behalf of the defence an application Ext.
He also companytended apart from the companytents of the dying declaration, the prosecution has also failed to establish its charges against the appellants.
It also numbericed the fact that the dying declaration in question was recorded at about 9.40 a.m. while the deceased died at 10.10 a.m., shortly thereafter.
No suggestion was put to the other prosecution witness as to the existence of a dying declaration.
On 28.4.1986 the deceased suffered severe bum injuries which was to the extent of 94, companysequent to which she died on the next day in the hospital at Nashik.
According to the prosecution, right from the day of marriage deceased was ill treated on account of number payment of sufficient dowry and also because of her black companyplexion.
It was number the case of the prosecution that the deceased had made any dying declaration but the doctor PW 5 , who companyducted 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.
Prosecution case briefly stated is as follows Deceased Mina was married to first appellant on 27.4.1982.
40 the alleged dying declaration was admitted in evidence, as also numbericing the total absence of evidence in regard to the proof of the said document found fault with the trial companyrt for making the said dying declaration as foundation of its judgment by which the accused persons were acquitted.
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.
She had almost 95 burns and she was put on oxygen right from the moment she was brought to the hospital and companytinued to be on oxygen till she died.
The High Court, further, numbericed the tact that ever since the deceased was brought to the hospital she was on oxygen till her death.
So far as the genuineness of dying declaration is companycerned, having perused the material on record, we are also satisfied that the said document is number a genuine document.
Santosh Hegde, J. The appellants before us were charged for offences punishable under Sections 306 and 498A read with Section 34 of the Indian Penal Code.
