Judgment N. V. DABHOLKAR, J. ( 1 ) PRESENT appeal, under section 374 (2) of the Code of criminal Procedure, 1973, is filed by original accused No. 1, thereby challenging his conviction for offence punishable under section 302 read with 34 of Indian Penal Code, and sentence imposed thereafter, i. e. life imprisonment, fine of Rs. 2000/-, in default, simple imprisonment for six months. In fact, present appellant and one Sow. Sunanda Pandurang Pawar, aged 40 years, were tried together in Sessions Case No. 112 of 2002 by Adhoc Additional Sessions Judge, nanded. They were charged for the offences punishable under sections 498-A, 302 read with 34, I. P. C. The trial concluded with judgment and order dated 13-11-2003, which is under challenge by the present appeal on behalf of original accused No. l Ankush. Both the accused are acquitted, so far as offence punishable under section 498-A read with 34, ipc is concerned. However, both of them have been held guilty for committing murder of Sow. Pramodini w/o. Ankush Pawar, in furtherance of their common intention and they are sentenced to life imprisonment, fine of rs. 2000/-, in default, simple imprisonment of six months. ( 2 ) THE prosecution story, as gathered from the record, can be stated as follows :- the deceased Pramodini was married to accused No. 1 on 18-2-2002. The incident in question is said to have taken place on 22-4-2002 at about 10. 00 p. m. at the matrimonial home i. e. at the place of accused No. l. Accused No. 2 is said to be a person residing in the vicinity of the house of accused No. 1. It has come in the evidence of PW 3 Bainabai (mother of the deceased), that, accused No. 2 sunanda has five children i. e. three daughters and two sons and her eldest son is aged about 20 years. Accused No. 2 Sunanda is real sister of Sumitra. Sumitra is the wife of Namdeo- real cousin of PW-5 Dagadu (father of the deceased ). Thus, accused No. 2 is cousin parental aunt of deceased Pramodini and thereby she is a distant mother-in-law of accused No. 1. It is not in dispute that Pramodini died of burn injuries suffered during the incident that occurred at 10. 00 p. m. on 22-4-2002 at village murambi,taluka-Loha, District-Nanded. Thus, accused No. 2 is cousin parental aunt of deceased Pramodini and thereby she is a distant mother-in-law of accused No. 1. It is not in dispute that Pramodini died of burn injuries suffered during the incident that occurred at 10. 00 p. m. on 22-4-2002 at village murambi,taluka-Loha, District-Nanded. The debate is, whether, the incident, during which pramodini caught fire, was homicide by the two accused or, she committed suicide, or it was an accident. PW 3 Bainabai, PW 4 dayanand, PW 5 Dagadu (mother, brother and father respectively of deceased Pramodini) and pw 6 Abhiman, have come with a uniform story. According to them, on 23rd morning at about 6. 00 a. m. , a telephonic message was received at the house of Sheshrao, cousin brother of PW 5 Dagadu, about Pramodini having suffered burn injuries and having been admitted in Civil Hospital, nanded. The message was communicated to the family, by Umakant-son of Sheshrao. The family members reached Nanded, by a private jeep at about 7. 00 a. m. All of them claimed that, the deceased Pramodini talked to them and she disclosed a story of the two accused having set her on fire. According to the narration, accused No. 1-appellant sprinkled kerosene on her person and accused No. 2 ignited her, by using a match stick. Apart from this dying declaration as heard by four close relatives of the victim, the prosecution is armed with two recorded dying declarations, which are at Exhibits 53 and 63 of the trial court record. Exhibit 53 was recorded by ASI Kisan Kamaji Bokhare (PW 7), who was then attached to Vajirabad Police station, outpost, located at Civil Hospital, nanded. This was recorded on 23-4-2002 at about 6. 00 p. m. The second dying declaration is recorded by Shri. M. V. Mane (PW 9), the then Judicial Magistrate, Kandhar, who was on deputation at Nanded. This was recorded between 9. 00 p. m. to 9. 30 p. m. on 23-4-2002. At the time of recording both the dying declarations, PW 10, Dr. Saurabh Joshi was on duty and he has certified to both the authorities, fitness of the victim to make statement, after examination of the patient. This was recorded between 9. 00 p. m. to 9. 30 p. m. on 23-4-2002. At the time of recording both the dying declarations, PW 10, Dr. Saurabh Joshi was on duty and he has certified to both the authorities, fitness of the victim to make statement, after examination of the patient. Thus, it can be seen that, the prosecution case is mainly based on one dying declaration (oral) heard by the parents, brother and uncle of the deceased in the morning of 23-4-2002 and sometime immediately after 7. 00 a. m. , and two recorded dying declarations, recorded on the same day at 6. 00 p. m. and 9. 00 p. m. Except the witnesses referred during above narration of the prosecution story, remaining witnesses are not of much significant importance. PW 1 Sudhakar and PW 2 sahebrao are the Panch witnesses, who have attended drawing of inquest and spot panchanama. Dr. Satyanarayan (PW 8), who was then professor of Forensic Science attached to Medical College, Nanded, had performed autopsy on the dead body of pramodini, at the request of the Investigating officer. He has recorded the cause of death to be shock due to burns. The cause of death is not in controversy but the manner in which the victim was set on fire is a question of debate. The remaining two witnesses, namely, Shri. P. M. Shinde (PW 11) and Shri. V. B. Mahanwar (PW 12) were the police officers attached to Malakoli Police Station (within whose territorial jurisdiction, village Murambi happens to be) and they have carried out the investigation, PW 12 being successor in office of PW 11. ( 3 ) THE prosecution has corae with a theory of homicide at the hands of the two accused persons. The defence has come with a equally bold story. Admittedly, the deceased had passed Diploma in Medicine and Laboratory technician (DMLT ). She was staying at the house of brother of Bainabai (maternal uncle) at village Mahapur, while taking education at latur and for the purpose, she was travelling daily between Mahapur and Latur. This position is admitted, at least by the mother of the victim. The mother has even admitted that, she knows dr. Ramesh r/of Wadval. It is the defence of the accused that, the deceased Pramodini was in love with the said Dr. Ramesh and they had decided to marry. This position is admitted, at least by the mother of the victim. The mother has even admitted that, she knows dr. Ramesh r/of Wadval. It is the defence of the accused that, the deceased Pramodini was in love with the said Dr. Ramesh and they had decided to marry. When the parents tried to settle the marriage of Pramodini with accused no. 1, she had disclosed these details to the parents. However, the parents ignored her desire and compelled her to marry with accused no. 1. Due to marriage against her wishes, pramodini always used to be in dejected mood. It is the claim of the defence that, the deceased might have committed suicide in such mental condition. The defence has even claimed that a suicide note was found by the Investigating officer while drawing panchanama of scene of occurrence, which is suppressed by the prosecution. Thus, it is evident that the two sides have come with theories of homicide and possible suicide, respectively. During his statement under section 313 of the Code of Criminal Procedure, 1973, accused No. l has admitted marriage with the victim. He has admitted receipt of amount of rs. 45,000/- and 20 grams gold at the time of marriage. He also admitted allegation to the effect that, he was one amongst those, who extinguished fire. He has also admitted that, he had taken the deceased firstly to Primary health Centre, Loha and thereafter to Civil hospital, Nanded. In reply to concluding question No. 84, he has claimed that Pramodini had written a note to him prior to death (suicide note ). Note was shown to him by the police constable and he had read it. In the note, deceased had disclosed that, she was not allowed to marry with Dr. Ramesh because the family of the deceased believed Dr. Ramesh to be of lower class. However, relation of pramodini with Dr. Ramesh were at an advanced stage and they had also indulged into sexual relation. Consequently, Pramodini had taken a vow not to marry (anyone else ). She married accused No. l due to force of the family members. She had expressed that, it was necessary for her to end the life before satyanarayan pooja. She had suggested her parents to keep quiet, else, they will be defamed. Appellant-accused claimed that, the police have suppressed that suicide note, from the Court. She married accused No. l due to force of the family members. She had expressed that, it was necessary for her to end the life before satyanarayan pooja. She had suggested her parents to keep quiet, else, they will be defamed. Appellant-accused claimed that, the police have suppressed that suicide note, from the Court. Accused No. 2 has answered to the questions in routine manner, by saying either, "i do not know", or, "it is false. " In last two questions, she has made a feeble defence that, due to strained relations, witnesses have deposed against her. ( 4 ) AS the arguments progressed, we realised that, both the accused persons were charged with offences punishable under sections 498-A and 302 read with 34, IPC, by relying upon the same set of facts. In fact, on reference to charge at Exhibit 17, it is evident that, for the purpose of charge under section 498-A, the two accused are said to have subjected the deceased Pramodini to ill- treatment and cruelty on account of "disturbance of Pramodini for illicit intercourse between accused Nos. 1 and 2". Probably, the learned Judge desired to indicate that, accused nos. 1 and 2 subjected the deceased Pramodini to ill-treatment and cruelty as they found pramodini to be an obstacle in the immoral relationship between the two accused. So far as charge under section 302, read with 34, IPC is concerned, it is alleged that, accused No. 1 sprinkled kerosene and accused No. 2 ignited the victim. The victim being a thorn in the flesh of immoral relationship between the two accused, is the only motive for the murder. The case is based on, as already stated hereinabove, one oral and two recorded dying declarations. Thus, both the accused are tried for the same charges by relying upon the same set of circumstances, evidence and witnesses for an incident, in which both of them were involved. Consequently, we felt it just and proper to indicate to learned APP that, in case, appellant-accused No. l successfully challenges the impugned judgment, appellant no. 2, who has not preferred any appeal and who is said to have been lodged in Yerwada central Prison, Pune, as submitted, on instructions, by Advocate Shri. A. M. Gaikwad, should also be entitled to benefit of successful challenges to the impugned judgment. 2, who has not preferred any appeal and who is said to have been lodged in Yerwada central Prison, Pune, as submitted, on instructions, by Advocate Shri. A. M. Gaikwad, should also be entitled to benefit of successful challenges to the impugned judgment. In other words, in case, appellant-accused No. l successfully demonstrates the prosecution case to be disproved, not proved or unreliable of belief, the entire judgment would be unsustainable and consequently, the conviction of accused No. 2 also, although she has not preferred any appeal, will have to be set aside. The position may not be the same, in case, appellant-accused No. 1 fails to persuade us to take a view different than the one taken by the trial court. If the appellant-accused No. 1 fails, right of appeal of accused No. 2 cannot be taken away. But, if the appellant-accused No. 1 demonstrates the finding of guilty, conviction and sentence recorded by the impugned judgment, to be not sustainable, the benefit ought to go to original accused No. 2 Sunanda. We have, therefore, directed the learned A. P. P. to defend the matter by keeping this view in his mind. While taking such a course of action, we have ascertained from computer section and criminal branch of this court that, no appeal preferred by accused no. 2 Sunanda, is, so far, registered. ( 5 ) HEARD Advocate Shri. A. M. Gaikwad for appellant and learned A. P. P. Shri. S. D. Kaldate for the State. Both of them have strenuously taken us through the entire evidence and the impugned judgment and desired us to read the same in the manner expressed by them and in favour of their respective clients. ( 6 ) AT the outset, we may say that, it is not the case of the prosecution, neither in the recorded or oral dying declaration, that, the deceased was subjected to ill-treatment or cruelty of such a degree that, she committed suicide as a result of the same. It is also not the prosecution story that, there were illegal demands, either from the husband or his relatives and she was subjected to ill-treatment in order to pressurize and thus persuade pramodini and her parents, to satisfy their illegal demands. Cruelty, as contemplated by explanation below section 498-A, IPC, is the conduct which fits in, either of the two contingencies described hereinabove. Cruelty, as contemplated by explanation below section 498-A, IPC, is the conduct which fits in, either of the two contingencies described hereinabove. The charge, as framed by the learned Judge, states that the two accused subjected the deceased to cruelty because they felt her to be an obstacle in their immoral relationship. Such a purpose, even coupled with proved ill-treatment, would not attract section 498-A, IPC. The charge was, therefore, bound to fail, the moment it was framed. Learned Judge has acquitted the accused persons of the said charge and the state has not preferred any appeal to that extent. We, therefore, need not discuss the issue any more beyond the discussion hereinabove. Date : 7-7-2005. ( 7 ) SO far as charge under section 302 read with 34 of IPC is concerned, which is held proved; it must be said that, there is no direct evidence, supporting such a case. The prosecution relies upon oral evidence of PWs. 3 to 6 i. e. mother, brother, father and uncle of the deceased, who claimed to have heard from deceased Pramodini in the hospital, regarding cause of death. This is one dying declaration (oral ). Two dying declarations are recorded, one (Exh. 53) by ASI Kisan Bokhara and another (Exh. 63) by Judicial Magistrate, Shri. Mane. These three dying declarations form the foundation of the prosecution case, so far as charge of murder is concerned. Having gone through the judgment of the trial court, it can be said that, the learned judge has found the evidence of ASI and judicial Magistrate, First Class, who recorded the respective dying declarations of the victim, to be in harmony with the statement recorded and duly supported by Medical Officer, Dr. Saurabh Joshi. He has also felt that, narration by close relatives regarding "oral dying declaration" heard by them, is consistent and defence has not been able to penetrate, inspite of searching cross. The learned Judge has, thus, accepted the three dying declarations to be reliable. The reasons discussed, we feel; are cryptic and at times, we have not been able to resist feeling that the facts were not fully marshalled, reasons, which we are going to discuss hereinafter, have not even touched the thinking of the learned Sessions Judge. The reasons recorded by the trial judge are summed up as above, and such summing up finds place in paragraph 40 of the impugned judgment. The reasons recorded by the trial judge are summed up as above, and such summing up finds place in paragraph 40 of the impugned judgment. After hearing the learned Counsel for the appellant, we find some inherent weaknesses in the prosecution evidence, which we shall discuss hereinafter and which were not even noticed by the learned Judge. The dying declaration, if found reliable, can form basis of conviction but, before relying upon the dying declaration, it is required to be tested for its truthfulness and reliability on every possible touchstone available in the material on record, which exercise does not appear to have been done by the learned trial judge. ( 8 ) AT the outset, we may refer to deposition of father of the deceased, namely dagadu and more particularly, admission by him at the conclusion of his evidence. He has admitted :- "except my daughter and her husband's sister, all went outside the house for attending Kirtan. After hearing hue and cry and burning flame of my daughter, the person attending Kirtan and her husband came to the house of accused No. 1. " if this admission of the father of the deceased is to be taken into account, that uproots the prosecution story in its totality. The admission indicates that, the husband was at the place of kirtan, when the deceased caught fire and he was amongst those, who ran and extinguished the fire. It is admitted by accused also that, he was amongst the persons, who extinguished fire and he only took the victim to Primary health Centre, Loha and then to Civil Hospital, nanded. We are not inclined to give much importance to this admission. This is because, the father of the victim was not a person present at the location when the incident occurred. He was at his village. It can safely be inferred that, these admissions by father are based upon his information collected subsequent to the occurrence. The admission, as a piece of evidence, is hearsay evidence and hence, not admissible. The fact remains that, by this admission, cat peeps out of the bag. ( 9 ) SHRI. A. M. Gaikwad, learned advocate for the appellant, has requested us and took us through both the recorded dying declarations, (Exhibits 53 and 63 ). The admission, as a piece of evidence, is hearsay evidence and hence, not admissible. The fact remains that, by this admission, cat peeps out of the bag. ( 9 ) SHRI. A. M. Gaikwad, learned advocate for the appellant, has requested us and took us through both the recorded dying declarations, (Exhibits 53 and 63 ). He was justified in saying that the entire portion, which is the statement of the deceased, is identical in both the documents. On reference to Exhibits 53 and 63, these contents begin with sentence;the portion concludes with the sentence. This is exactly the portion recorded by Judicial magistrate, as reply, in response to his question,i. e. "what you have to state about the incident. " no doubt, in both the statements, earlier portions, which contain the details, such as, name, age, place of residence and some details of the events post-incident, which are after conclusion of this statement, are recorded in different manner. But, whole the portion, which is dying declaration, is verbatim identical in the two recorded dying declarations, except few grammatical errors/variations, which can only confirm that one is written by dictation from the other and not by scribe himself, reading the first statement and writing the second. We have read the two dying declarations between us, by one of us referring to Exhibit 53 and one of us reading it from Exhibit 63 and only thereafter, have arrived at a conclusion that those are verbatim identical, including the punctuations, such as, comma, colon, full stop. How approach of the Trial Court is erroneous; can be demonstrated by the reasons recorded by him for rejecting this very argument advanced before him, that the two dying declarations are verbatim identical and, therefore, there is suspicion that one is copied from the another. In paragraph 12 of the impugned judgment, the learned Sessions Judge observed; "the suggestion given by defence Counsel, the statement recorded by Shri. Mane, is a stereotype in word in word, comma to comma and is similar to the statement recorded by PSO of Police Station, vajirabad, but this suggestion is denied by this witness, flatly. In paragraph 12 of the impugned judgment, the learned Sessions Judge observed; "the suggestion given by defence Counsel, the statement recorded by Shri. Mane, is a stereotype in word in word, comma to comma and is similar to the statement recorded by PSO of Police Station, vajirabad, but this suggestion is denied by this witness, flatly. " the learned Judge, obviously; has not taken pains to read the two dying declarations, may be with the assistance of his prosecutor, or defence counsel, and check the correctness of the submission of learned Counsel that, one dying declaration is copied from another, which is a very serious circumstances, making a dent on the reliability, not of only one, but both the dying declarations. Accepting the denial of defence suggestion on the part of the witness/magistrate, that he has not copied it, as a gospel truth, is refusal on the part of learned Sessions Judge to apply his mind. It was necessary for him to compare the two dying declarations and ascertain that one was not copied from another. The exercise was done by us, and we find that the defence counsel was justified in making such serious accusation against the dying declarations. In our considered view, once the documents themselves confirm that one dying declaration is verbatim copy of another dying declaration and the dying declarations run into l page, which must have taken time of 20 to 30 minutes for writing (in fact, as per the record those took half an hour), both the dying declarations make themselves unreliable. Ordinarily, it will be said that, because Exhibit 63 is recorded later at 9. 00 p. m. , it is copy of exhibit 53, which was recorded at 6. 00 p. m. Exhibit 63, therefore, loses its importance and if the prosecution is inclined to reinforce its case, by copying one declaration again it brings itself under cloud, even about the first dying declaration. Learned Counsel has taken us through the case papers of the victim, which are produced at Exhibit 70 before the trial court and we point out few entries therefrom, relied upon by him. On 23rd April, a warning is given to accused No. 1 that, condition of victim is critical. On 23-4-2002 at 2. 30 a. m. , the entries recorded by Dr. Saurabh, show that, the patient was under oxygen inhaler. On 23rd April, a warning is given to accused No. 1 that, condition of victim is critical. On 23-4-2002 at 2. 30 a. m. , the entries recorded by Dr. Saurabh, show that, the patient was under oxygen inhaler. Same was the condition on 23-4-2002 at 8. 00 a. m. and 6. 00 p. m. The first dying declaration (Exhibit 53), from which the second was copied, is recorded on 23-4-2002 at 6. 00 p. m. when the patient was given artificial aid for respiration. In this context, some medical opinion is obtained by the defence from Dr. Satyanarayan (PW 8) who had, in fact, carried out post-mortem. Dr. Satyanarayan admitted that if the respiration is not proper in a burn case, patient should be given oxygen. Ordinarily, in the burn case, there is no difficulty for respiration. But in critical cases oxygen is required to be given. Entries in the crse paper thus demonstrate that on 23-4-2002 at 6. 00 p. m. , when the first dying declaration is claimed to have been recorded by AST Kisan, after ascertaining the fitness of the victim, from Dr. Saurabh, the patient was critical, having problem about respiration and there is every room to infer that the patient could not have spoken for half an hour for recording her dying declaration. These dying declarations also get hit, by certain omissions on the part of the prosecution. Admittedly, the victim was taken to Primary Health Centre, as well as Civil hospital, by accused No. 1. There is every chance that history of injuries could have been given by accused No. l, and also convenient for saving his skin, if he was culprit. Still, it was the duty of the prosecution to bring the same on record. In the case papers referred (Exhibit 70), Dr. Saurabh, by referring to same, admitted that, history of accidental burn is recorded at Civil Hospital, Nanded, by Dr. Khanapure, who had admitted the patient. The prosecution has not ventured to examine Dr. Khanapure and bring if on record that, the history was recorded as narrated by accused no. l, which could have provided the prosecution additional strength, if the reporting by accused No. l, was false. Admittedly, the victim was initially, taken to Primary Health Centre, Loha. Khanapure, who had admitted the patient. The prosecution has not ventured to examine Dr. Khanapure and bring if on record that, the history was recorded as narrated by accused no. l, which could have provided the prosecution additional strength, if the reporting by accused No. l, was false. Admittedly, the victim was initially, taken to Primary Health Centre, Loha. Neither the Medical Officer, Loha, is examined by the prosecution as witness, nor the Investigating officer appears to have collected case papers prepared by Primary Health Centre, Loha, which could have recorded the history of injuries and version, either of the deceased or accused No. l, would have been more spontaneous. For all above reasons, the two recorded dying declarations (Exhibits 53 and 63) cannot be free from doubts. ( 10 ) BAINABAI, Dayanand, Dagadu and abhiman (PWs. 3 to 6), i. e. mother, brother, father and uncle of the deceased, have claimed to have visited the hospital and heard oral dying declaration. In order to reduce the length of the judgment, we do not wish to discuss the evidence of Abhiman at length, who is the husband of maternal aunt of deceased and comparatively a distant relative than PWs. 3, 4 and 5, who are closest possible blood relations. From the evidence of Bainabai, dayanand and Dagadu, it is common ground that a telephonic message was received by sheshrao (cousin brother of PW 5 Dagadu) on 23-4-2002, at about 6. 00 a. m. that, Pramodini suffered burn injuries and she is admitted in civil Hospital, Nanded. The message was communicated to the family, by Umakant-the son of Sheshrao. The family hired a special jeep and reached Civil Hospital, Nanded, by about 7. 00 a. m. , as admitted by Bainabai. According to these three witnesses, the victim was talking fluently. They enquired her and she made oral dying declaration to them. According to Bainabai, the victim told her that accused No. 2 is keep of her husband, and the two accused set her on fire because, she was interfering in the relations between the two accused. She narrated that, accused No. 1 sprinkled kerosene on her person and accused no. 2 set her on fire, with the help of match stick. Thereafter, both the accused fled away. She narrated that, accused No. 1 sprinkled kerosene on her person and accused no. 2 set her on fire, with the help of match stick. Thereafter, both the accused fled away. On reference to oral dying declaration, as heard by brother Dayanand and further dagadu, (paragraph 3 of evidence of both the witnesses), they have additional story. According to them, what they heard from the victim, on enquiry to her, upon reaching the hospital, was as follows :- "after meals on 22-4-2002, the victim and her sister-in-law (husband's sister) only were at home. Parents-in-law went to attend Kirtan. The husband also went outside the house. Pramodini was sleeping, waiting for arrival of husband. He did not return. Therefore, she went to house of accused No. 2 Sunanda. She peeped through aperture of the window to find that, husband and Sunanda were in a common bed, she knocked the door, her husband came out and assaulted her. Consequently, pramodini returned home, and while she was sleeping, the two accused entered her room, whereafter, No. 1 sprinkled kerosene on her person, and No. 2 ignited her. " we believe, when father, brother and mother visited the injured Pramodini in the hospital, she would speak to them, when they are collectively present. It is not the case of prosecution that, she talked separately to each of them and each of them heard the oral dying declaration, independently. It is pertinent to note that, earlier part of the story narrated by brother and father about the visit of Pramodini to the place of accused No. 2 to find her husband and accused No. 2 in common bed, is absent in the deposition of mother. On reference to Exhibits 53 and 63 also, such a story does not find place in the recorded dying declarations. The recorded dying declarations are not a truncated narration. In the opening paragraph of recorded dying declarations, the victim has narrated the incident that had occurred on the day of Satyanarayan pooja, during which accused No. 2 is alleged to have claimed right over husband of Pramodini i. e. accused No. 1, to the extent of 50 per cent. We have also pointed out that condition of pramodini on 23-4-2002 at 6. 00 p. m. , was critical, as she was given artificial respiration and she could not have spoken so many details. We have also pointed out that condition of pramodini on 23-4-2002 at 6. 00 p. m. , was critical, as she was given artificial respiration and she could not have spoken so many details. But, if she was fit enough to make a lengthy statement, she would not have forgotten the part of the incident, immediately preceding the incident during which she was set on fire. The improvements by father and son, over and above the dying declarations (recorded), and dying declaration (oral), heard by the mother, speak against their character as reliable witnesses. The claim by all these witnesses that, they heard oral dying declaration from the victim, irrespective of the fact, whether cryptic or lengthy; stands falsified by their own conduct. All three have unanimously admitted that, on 23-4-2002, they had been to the Police station. Accused No. 1 had accompanied them to police station. It is the claim of father that, he reported the matter to police station. If the three family members heard oral dying declaration in the morning and reported the same to the police station, in the afternoon, the police were bound to register it as a cognizanable offence, an attempt to commit murder because, at that time, Pramodini was still alive. Nothing of the sort has happened. What was reported by the father to Malakoli Police Station in the afternoon of 23-4-2002, is allowed to remain mystery for the court. Although father claimed in paragraph 4 of his evidence that, on the very evening accused No. 1 was arrested, as if arrest followed his reporting to police station, such version is a patent lie. From arrest panchanama (Exh. 72), it is evident that, accused No. l was arrested on 25-4-2002 at 00. 30 hours i. e. past- midnight between 24th and 25th i. e. nearly 36 hours after the alleged report by the father to the police station, Malakoli, which is not placed before the Court. Adverse inference that is required to be drawn is that, the father reported nothing inculpatory as against any of the accused persons, and at least he did not report anything, which could be information regarding occurrence of a cognizable offence. As a corollary, further inference is that, father and family members had not heard anything inculpatory from their daughter, in the morning. It is clear from the evidence that, in fact, father never lodged any complaint. As a corollary, further inference is that, father and family members had not heard anything inculpatory from their daughter, in the morning. It is clear from the evidence that, in fact, father never lodged any complaint. Dying declaration recorded on 23-4-2002 by ASI Kisan, is treated as FIR. We fail to understand the passive attitude of father, mother and brother, which is not compatible with their claim of having heard oral dying declaration by Pramodini. In this context, although denied by father, defence has offered a very bold suggestion. In paragraph 10, following is the version of father Dagadu : "it is not true that, I have quarreled with A. No. 1 on 25-4-2002 and demanded marriage expenses from him. " the fact that, accused is not arrested till 25-4-2002, 00. 30 hours, inspite of claims by prosecution witnesses to have heard the victim on 23-4-2002 at about 7. 00 a. m. , 6. 00 p. m. and 9. 00 p. m. , speaks volume against the prosecution. We feel that, the circumstances taken into consideration in totality, are sufficient to arrive at a conclusion that, the claims by relatives of the deceased, of having heard oral dying declaration on 23rd morning, are not truthful. The statements by father and brother are recorded on 27-4-2002, and that of mother, admittedly after death of Pramodini, on 29-4-2002. If oral dying declaration and recorded dying declarations were available on 23rd morning and evening, this delay, which is not explained by the Investigating Officer, must be taken as the time consumed by the prosecution witnesses and the Investigation officer to give shape to the prosecution case as they desired. The strongest evidence of their attempt to give shape, is the dying declaration (Exh. 63), being copy of Exhibit 53. ( 11 ) IN fact, matrimonial life of couple was precisely of 64 days, including the day of marriage and the date of incident. All these witnesses have admitted that, after 15 days cohabitation, the deceased and accused No. 1 had come to Zari, the place of parents of deceased Pramodini, and stayed with the family for 4-5 days. At that time, Pramodini did not complain. But the incident, during which family members learnt about Pramodini being unhappy, her life being totally ruined by the husband, was on the day the couple returned from Holi trip to Lord Tirupati. At that time, Pramodini did not complain. But the incident, during which family members learnt about Pramodini being unhappy, her life being totally ruined by the husband, was on the day the couple returned from Holi trip to Lord Tirupati. This was just prior to the alleged incident. Admittedly, the trip covered a period of 4-5 days. On earlier day, the deceased, accompanied by younger brother of accused No. 1, had come from murambi to Zari. On the next day, accused no. l, with his family members, came to Zari, they took the deceased and proceeded to tirupati. The trip was sponsored by the parents of the deceased. It is the claim of the father, mother and brother that, on way home from tirupati to Mumbai, the trip took halt at Zari, they took their meals and then left to the place of accused No. 1 i. e. Murambi. It is on this occasion, the deceased is said to have narrated the woes of her marital life to all of them. We may quote from the evidence of Dayanand. "prior to five days of the incident, my sister came to my house after returning from tirupati, with her husband. My sister had disclosed to myself, my brother (mother) and father when we were sitting jointly saying that her life was spoiled. She further disclosed that, accused No. 2 Sunanda, who is a neighbour of her husband, is her (his) lover (Preasi), and she is a teacher at anganwadi. She further disclosed that, while she and her husband were talking and sitting in the house at that time, Sunanda pawar who is Lover of her husband came to her house and disclosed that she was having half share with her husband. She further disclosed that Sunanda was having love affairs with her husband prior to her marriage. " brother has given further details of narration, sum and substance of which is that, sunanda blamed deceased for being a thorn in the flesh of her immoral relationship with accused No. 1 and, therefore, thereafter, both of them started ill-treating deceased Pramodini. Father Dagadu has given identical version, including the specific words that sunanda claimed half share in the husband. The mother Bainabai also narrated similar story. But without, specific claim of half share in the husband, as described by the brother and the father. Father Dagadu has given identical version, including the specific words that sunanda claimed half share in the husband. The mother Bainabai also narrated similar story. But without, specific claim of half share in the husband, as described by the brother and the father. It must be borne in mind that, this is the narration by Pramodini, when she visited the place of parents on way home after visit to tirupati, and in this context, we wish to refer to certain admissions by these witnesses. Dayanand, in his cross-examination para 6, admits; "while A. No. 1 and my sister returned from tirupati they came to my village by jeep along with other persons from their village. There were about ten persons in the jeep. On the very day, after taking meals, my sister and accused No. 1 and other persons returned to village Morambi. The mother of accused No. 1 and other women were also in that jeep. My father and mother had talked with guests, who came to my house with accused No. l and my sister. Thereafter, there was no meeting between me and my sister. "father Dadagu in his cross-examination para 6 admits that, "after return from Balaji, my daughter, her husband and other persons stayed at my house about one and two hours and after taking meal they went to village Morambi. " it is evident that, there was a party of about ten guests plus family members at home. In the light of presence of so many guests in the house, we are unable to accept the version of 19 years old brother that, all story quoted hereinabove, was narrated by Pramodini collectively to parents and brother, by keeping the husband had guests outside the house. In fact, the brother and audacity to say that, his sister disclosed these things to them, when husband was outside the house. ( 12 ) ACCUSED No. 1 has come out with a specific defence that, the deceased had left a suicide note, which was collected by the police, while drawing panchanama of scene of occurrence, and that, he had occasion to read it. The defence has not gone totally waste. ( 12 ) ACCUSED No. 1 has come out with a specific defence that, the deceased had left a suicide note, which was collected by the police, while drawing panchanama of scene of occurrence, and that, he had occasion to read it. The defence has not gone totally waste. Although the Investigation Officer, PSI Shinde, denied any such recovery, PW 2 Sahebrao, in whose presence panchanama of scene of occurrence was drawn, has deposed thus : "the police also seized one letter on the spot, but it was not shown to me and another Panch witness. " eventually, this version has come in the chief-examination itself, and the learned A. P. P. has not cross-examined the witness on this point, by seeking permission of the Trial Court. The defence does not shoulder the same burden of proof as the prosecution. The defence can discharge its responsibility by creating preponderance of probability of the theory put up by it. Failure of defence does not strengthen the prosecution case. When, for the reasons discussed hereinabove, we have found that the prosecution story of oral dying declaration heard on 23rd morning is doubtful due to subsequent conduct of the parents of the deceased, and when we found that the recorded dying declarations are doubtful pieces of evidence, it s not necessary to enter the defence theory. But we shall refer to the same in brief. On reference to evidence of mother bainabai (para 4), it is clear that, she has admitted that she knows Dr. Ramesh resident of Wadval. We are unable to appreciate denial on this point by son and the father. Father and brother have emphatically denied any knowledge about any individual, by name, Dr. Ramesh. It is the claim of defence that, Dr. Ramesh was practicing at Latur, although bainabai claims ignorance about it. Admittedly, deceased Pramodini stayed at the house of her maternal uncle Sudhakar for the purpose of education, at village Mahapur. She was taking education at Latur, by daily travelling from mahapur. The defence has made a bold suggestion that, the deceased was withdrawn to the parents' place because, the maternal uncle Sudhakar refused to allow her to continue at Mahapur because, he learnt about the deceased having established some relations with Dr. Ramesh. She was taking education at Latur, by daily travelling from mahapur. The defence has made a bold suggestion that, the deceased was withdrawn to the parents' place because, the maternal uncle Sudhakar refused to allow her to continue at Mahapur because, he learnt about the deceased having established some relations with Dr. Ramesh. No doubt, these further suggestions are denied, also by Bainabai like brother and father but, total denial of knowing any person by name Dr. Ramesh, on the part of father and brother, on the basis of admission by mother, does not leave them free from doubt. Mother admits that, marriage of accused no. 1 and Pramodini was settled by Sumitra. Sumitra is real sister of accused No. 2, and on other side, she is wife of Namdeo, cousin brother of PW 5 Dagadu. We find that, father and brother have allergy of this name Sumitra, as that of Dr. Ramesh. Brother Dayanand, in cross-examination para 5, denies that, Sumitra is resident of Zari, or that, she attended engagement ceremony. If mother has admitted that, Sumitra was the mediator in settling the marriage and otherwise also, she is wife of namdeo-cousin brother of PW 5, she was bound to attend the engagement ceremony. Dayanand is confident in saying that, she did not attend. According to father Dagadu, one bajirao from his village was mediator for settling the marriage of Pramodini and accused no. l He knows Sumitra of Village. This confirms that Sumitra is resident of Zari, to which Dayanand is not agreeable. But, father is not agreeable with mother that Sumitra was mediator for settling the marriage. He has denied the suggestion to the effect. Thus, it is evident that, although mother admits that she knows dr. Ramesh of Latur, and she also admits that, sumitra (sister of accused No. 2) is resident of zari and was mediator for the marriage, brother dayanand and father Dagadu are unwilling to accept this fact. Here, we are required to go back to the evidence of mother Bainabai. It was suggested to her that, because parents learnt about development of relation between dr. Ramesh and deceased Pramodini, they hurriedly settled the marriage of deceased with accused No. l and solemnized the same. Here, we are required to go back to the evidence of mother Bainabai. It was suggested to her that, because parents learnt about development of relation between dr. Ramesh and deceased Pramodini, they hurriedly settled the marriage of deceased with accused No. l and solemnized the same. Bainabai denied such suggestion but impliedly, she admitted that, marriage was immediately (hurriedly) solemnized, by a volunteered statement, "due to water scarcity in the village, the marriage of my daughter with Ankush was solemnized immediately. " Admission by the father, in paragraph 5 that, he had started searching for bridegroom, just one month prior to marriage, supports the possibility that the marriage was performed with some urgency. If one reads in between the lines, it is capable of generating suspicion about the theory propounded by the defence. ( 13 ) ALL three witnesses have claimed that the deceased narrated a story of love affair between the two accused and ill-treatment to deceased on that count. The incident, during which the deceased learnt this, was an incident when allegedly accused No. 2 barged in, while the couple was happily chitchatting. If we refer to recorded dying declarations, this has happened immediately after Satyanarayan pooja. In paragraph 9 of his cross- examination, father Dagadu admits thus : "after marriage, I have sent cousin daughter- in-law with my daughter after the marriage. After Satyanarayan Pooja, my cousin daughter-in-law returned back to my house. I had talked with her, after she returned from Morambi. "admission by the father clearly indicates that, immediately after marriage, the deceased was sent to husband's place, with a company from parental house. The companion was adult and married family member of the family. She appears to have continued to stay at the place of the accused till Satyanarayan Pooja. The incident, when accused No. 2 allegedly furiously claimed her right over accused No. 1, inspite of his being husband of the deceased, occurred on the day of Satyanarayan pooja. The father spoke to the family companion, who was sent with the bride, when she returned home. In the prosecution story, there is nothing to indicate that this family companion informed the father of the deceased, of the incident, which was subsequently informed to parents, only after return from Tirupati trip. The admission on the part of the father makes the story of such narration by the deceased to the parents, further doubtful. In the prosecution story, there is nothing to indicate that this family companion informed the father of the deceased, of the incident, which was subsequently informed to parents, only after return from Tirupati trip. The admission on the part of the father makes the story of such narration by the deceased to the parents, further doubtful. All three witnesses, relying upon the alleged oral dying declaration claimed that, the two accused together set the victim on fire, by no. 1 sprinkling kerosene and No. 2 igniting the deceased with a match stick, the story, same as incorporated in written dying declarations. All the while, it is claimed by the prosecution that, after setting the victim on fire, the two accused ran away and yet, it is also claimed that after hearing hue and cries, persons gathered to extinguish the fire, including accused No. 1. By any stretch of imagination, this does not fit in, as a probable story, if we consider natural course of human conduct. If accused Nos. 1 and 2 had set the victim on fire and taken to their heals, for the purpose of saving themselves, it is unlikely that, accused no. 1 would return to extinguish Pramodini, along with others. If this fact is taken into consideration, in the light of admission by father, which we discussed in the initial part of reasons for this issue, narration by father, although hearsay, appears to be probable and correct. Probably, accused No. 1 was not in the house, when the victim was set on fire and he returned after hearing shrieks of the victims. ( 14 ) TO say in brief, we must say that, the learned Judge lost sight of the fact that the dying declarations recorded, are copy of one another. He did not take into consideration medical evidence, which indicated that the deceased could not have been in a position to speak on 23-4-2002 at 6. 00 p. m. , when she was kept on artificial respiration. He has also lost sight of the fact that the family members, who claimed to have heard oral dying declaration, have not approached the police station immediately thereafter, or any time subsequently. The police treated the dying declaration as FIR and recorded their statements belatedly on 27th and 29th April, 2002, thus taking their own time to give shape to the prosecution story. The police treated the dying declaration as FIR and recorded their statements belatedly on 27th and 29th April, 2002, thus taking their own time to give shape to the prosecution story. For the reasons discussed hereinabove, we must say that, the prosecution has failed to establish the guilt. The judgment and conviction, therefore cannot be sustained against either of the accused, in view of the fact that, the evidence relied upon for conviction of the two accused, by the learned trial Judge, is one and the same, which we have found to be unworthy of credence and belief. Hence, although there is no appeal filed by accused No. 2 Sow. Sunanda Pandurang pawar, resident of Mumbai, Taluka-Loha, district-Nanded, she should be entitled to the benefit of our observations and findings, as recorded pursuant to the arguments advanced on behalf of appellant-accused No. l Ankush munjaji Pawar. Such a course of action is necessary in the interest of justice, failing which, accused No. 2 Sunanda would be undergoing life imprisonment, by reason of impugned judgment, which we found to be unsustainable. We are, therefore, inclined to exercise our inherent powers, as conferred by section 482 of the Code of Criminal Procedure, 1973, in favour of accused No. 2 Sunanda. Section 482 reads :- "482. Saving of inherent powers of High court.- Nothing in this Code shall be deemed to limit or affect the inherent powers of the high Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. "we will be justified in directing acquittal of original accused No. 2 Sow. Sunanda Pandurang pawar and her enlargement immediately, simultaneously with accused No. 1, in the light of clauses underlined hereinabove for the purpose of emphasis. It would be absurd that accused No. 2 should continue to undergo life imprisonment, merely because she has not filed any appeal, after we found the judgment convicting her, to be unsustainable. Hence, the following order. ( 15 ) (I) The appeal is allowed. (II) The judgment and order dated 13-11-2003 passed by Adhoc Additional Sessions judge, Nanded, in Sessions Case No. 112 of 2002, holding appellant Ankush Munjaji Pawar (original accused No. l) and Sow. Hence, the following order. ( 15 ) (I) The appeal is allowed. (II) The judgment and order dated 13-11-2003 passed by Adhoc Additional Sessions judge, Nanded, in Sessions Case No. 112 of 2002, holding appellant Ankush Munjaji Pawar (original accused No. l) and Sow. Sunanda pandurang Pawar (original accused No. 2), guilty of offence punishable under section 302, read with 34 of Indian Penal Code, is quashed and set aside. Both the accused are acquitted of all the charges those were levelled against them. They shall be set to liberty forthwith, (if not required in any other case ). Fine paid by the accused, shall be refunded to them. (iii) Registrar (Judicial) of this Court shall ensure that a writ for release of accused no. 2. Sow. Sunanda Pandurang Pawar, r/of murambi, Taluka-Loha, District-Nanded, is dispatched and reached, with all possible urgency, to the concerned prison authorities (wherever she is detained), for necessary compliance, in addition to similar writ pertaining to release of appellant-original accused No. l ankush Munjaji Pawar. (iv) Matter to come up on board with compliance reports pertaining to release of both the accused persons (appellant, as well as accused No. 2 Sunanda), on 28-7-2005. Appeal allowed.