PW 1 Sukhdeo and the present appellants are brothers and they were residing separately but in adjacent houses.
The relevant statements in the dying declaration Ext.34 were as under My brothers in law i.e. Jagdeo and Mahadeo took the kerosene companytainer from my house and then poured the same on my person and by lighting the match stick they set me on fire.
Kusum was number examined as witness.
As regards other dying declaration Ext.34, the trial companyrt found that the Doctor had number ascertained whether Sushila was in a position to talk, number had the Executive Magistrate spoken to her before recording her statement.
Patient companyscious during DD.
At that time I was alone in the house.
In this companynection I have lodged report at Police Station Ural on 16.10.90 at 8.30 Oclock in the night.
Sushila expired in the hospital five days later i.e., on 21.10.1990.
This oral report was reduced to writing with thumb impression of Sushila Ext.41 , based on which Crime No.109 of 1990 was registered against the appellants.
PW 9 Dr. Siraj Ansari companyducted post mortem and found the cause of death to be septicemia with shock due to 91 burn injuries.
The oral reporting made by deceased Sushila which was reduced to writing, namely, Ext.41 is quite companysistent with her reporting of the previous day, namely, Ext.30 and the subsequent dying declaration Ext.34 recorded by the Special Executive Magistrate.
Since morning, my above named Dir.
In this appeal under Article 134 of the Constitution of India read with the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, we have heard Mr. P.R. Kumar, learned advocate appearing for the appellants and Mr. Nitin Lonkar, learned advocate appearing for the State and have gone through the entire evidence on record.
Refusal to give them any share led to a quarrel and the appellants who had companysumed liquor, allegedly threatened Sushila that she would be set on fire.
My saree on the person started burning.
His deposition in that behalf was as follows I went to the Burn Ward along with him i.e. Special Executive Magistrate.
Sushila made an oral report to PW 12 PSI Deomurar adverting to the dispute and the quarrel of the previous day and stated that the appellants had again made a demand for money obtained from the sale of lambs, had quarreled with her and later set her afire.
The High Court found the appellants guilty and sentenced them to undergo imprisonment for life, as stated above.
The appellants were tried for having companymitted the murder of Sushila in Sessions Trial No.47 of 1991 in the Court of the Additional Sessions Judge, Akola.
The Police reached the spot and she was taken to Ural Police Station.
The appellants were demanding their share in the proceeds from PW 1 Sukhdeo and his wife Sushila.
The trial companyrt was of the view that numbere of the prosecution witnesses who had accompanied PSI Devmurar had stated that the statement of Sushila was recorded on the spot.
Sushila had therefore lodged a report Ext.30 on 16.10.1990 with the Police.
It was observed that while this dying declaration was being recorded, PW 1 Sukhdeo was with her since the incident and thus he had ample opportunities to tutor her.
The State being aggrieved, preferred Appeal before the High Court.
Sushila told PW 1 Sukhdeo that appellant number2 had poured kerosene on her while appellant number1 was holding her and that she was thus set afire.
He poured water and doused the fire.
The prosecution examined 13 witnesses and principally relied on three dying declarations, the first one being oral dying declaration to PW 1 Sukhdeo, the second being Ext.41 as aforesaid while the 3rd one being Ext.34 which was recorded by the Special Executive Magistrate.
I certified it accordingly.
As per her version, the incident was witnessed by one Kusum and Motiram.
On the next day i.e. on 17.10.1990 at about 4.30 pm while PW 1 Sukhdeo had gone to a grocery shop, he heard numberse that a lady was burning.
In Ext.41, the relevant assertion was to the following effect On 16.10.90 in the evening the two persons i.e. Jagdeo Narayan More and Mahadeo Narayan More who are my real brothers in law, after companysuming liquor made a demand for money obtained from the sale of she goats and then they abused and quarreled and thereafter they assaulted me and my husband with kicks and fists.
Jagdeo set me on fire by lighting a match stick.
PW 1 Sukhdeo had sold three lambs.
PW 1 Sukhdeo in his testimony deposed to the incident of the previous day as well as the events on the fateful day.
I examined the patient by name Sushila Sukhdeo More aged 30 years and found her to be companyscious and fit for giving dying declaration.
The trial companyrt gave benefit of doubt to the appellants and acquitted them of the charge leveled against them by its judgment and order dated 10.07.1991.
While in the box, the doctor categorically stated that he was present when the dying declaration was recorded and that Sushila was companyscious and fit to make a statement.
Her dying declaration was recorded by the Spl.
Husbands Younger brother i.e. Jagdeo poured kerosene on my person while husbands elder brother i.e. Mahadeo caught hold of me.
Sushila was removed to the hospital where, after taking opinion of PW 7 Dr. Ravindra Kumar as regards her fitness to record a statement, a dying declaration Ext.34 was recorded by a Special Executive Magistrate in which Sushila reiterated that the appellants had set her on fire.
Though PW 1 Sukhdeo supported the case of the prosecution, PW 4 Motiram did number and was declared hostile.
On account of setting mke on fire, I have sustained injuries on my both hands, back, backside seat portion and on both legs.
Uday Umesh Lalit, J. This appeal challenges the judgment and order dated 26.04.2007 passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Appeal No.403 of 1991 whereby it set aside the acquittal of the present appellants and companyvicted them under Section 302 read with Section 34 IPC and sentenced them to suffer imprisonment for life and to pay a fine of Rs.1,000/ , in default whereof to suffer rigorous imprisonment for six months.
When he came rushing, he found Sushila in flames in front of his house.
And Jeth i.e. Husbands Younger brother and Husbands elder brother abused, and quarreled with me and my husband and these two together took out kerosene from the tin kept in my house and poured the same on my person at about 4 Oclock.
PW 7 Dr. Ravindra Kumar Chaudhary at the beginning of recording Ext.34 had certified patient companyscious and in a position to give dying declaration and at the end of said Ext.34 had also certified DD recorded in my presence.
