Cr.Appeal/369/1994 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 369 OF 1994 The State of Maharashtra ..Appellant Versus Ashok Sajan Patil, Age 28 years, r/o Mangrul, Tq. Amalner, Dist.Jalgaon. ..Respondent ... Shri V.D.Godbharale, APP for appellant, Shri M.N.Navandar h/f Shri K.G.Navandar, Advocates for Respondent. ... CORAM : A.H.JOSHI & A.R.JOSHI, JJ. Dated : September 23, 2011 ORAL JUDGMENT : (Per A.R.JOSHI, J.) :- 1. Heard rival submissions on this Criminal Appeal, preferred by the State of Maharashtra, challenging the judgment and order passed in Sessions Case No.54 of 1993, by the learned Additional Sessions Judge, Amalner, on 25.7.1994. By the impugned judgment and order, present respondent/ accused was acquitted for the offence punishable under Section 302 of the Indian Penal Code ("IPC" for brevity). Cr.Appeal/369/1994 2 2. The case of prosecution, in nut-shell, is as follows:- Victim Nanda was married with respondent/ accused in the year 1990. Marital relations between them were good and apparently, there were no disputes. However, in the afternoon of 18.8.1993, incident of burning took place in the house. On that afternoon, there was some quarrel between victim Nanda and her husband respondent/accused on account of rather prolonged illness of victim Nanda. It was some gynecological problem of victim Nanda of recurrent discharge of some white fluid from her genital organs. On this count, there was exchange of hot words and in that incident, allegedly, the accused poured kerosene over the person of victim Nanda - his wife - and set her ablaze. 3. According to the case of prosecution, during the incident of burning, victim Nanda raised shouts. The fire was extinguished by her husband/ accused and also by the neighbours who gathered there. She was taken to hospital. In the hospital, her two dying declarations were recorded, which were in the immediate proximity of each other. First one Cr.Appeal/369/1994 3 was recorded at at 5.20 p.m. and second one at 5.35 p.m. 4. On the basis of the first dying declaration, offence was registered against the respondent/accused for the offence punishable under Section 307 of the IPC, as victim Nanda was then under treatment for burn injuries. While under treatment, victim Nanda succumbed to the 95 per cent burn injuries and therefore, Section 302 of the IPC was inserted in the charge sheet, in place of Section 307 of IPC. 5. During trial, six prosecution witnesses were examined. PW 1 is Vishwas Deshpande, Special Executive Magistrate, who recorded the first dying declaration Exhibit 19. PW 2 is Ramesh Patil, brother of victim Nanda. PW 3 is Tulshiram Surwade, Assistant Sub-Inspector, attached to Amalner Police Station, who received a memo from Amalner Hospital about admission of victim Nanda. PW 4 is Anant Kolapkar, Police Head Constable, who recorded second dying declaration Exhibit 26. PW 5 is attending Medical Officer - Dr.Ganesh Deshmane, who Cr.Appeal/369/1994 4 examined victim Nanda as to her condition prevailing at the time of recording of both the dying declarations. Last is PW 6 Yashwant Pagare, Investigating Officer. 6. So far present appeal against acquittal is concerned, what is important to ascertain is the authenticity of one oral dying declaration and two written dying declarations. Oral dying declaration was given before PW 2 Ramesh - brother of deceased, whereas, two dying declarations were recorded by PW 1 Vishwas Deshpande and PW 4 Anant Kolapkar. 7. We have observed that the learned Sessions Judge has critically examined the circumstances under which these three dying declarations were made. We have also observed that the learned Sessions Judge has come to the conclusion that there was apparently no dispute between victim Nanda and her husband/accused, which can, in all probabilities, lead to the act of homicide. The learned Sessions Judge has also discussed that there was only minor dispute regarding the gynecological problem of victim Nanda. However, it was opined by Cr.Appeal/369/1994 5 the learned Sessions Judge that it was not of such a magnitude that the accused would set his wife on fire, apparently, for no other reason as to do away with the wife. In order to come to this conclusion, the learned trial Judge had also discussed the evidence appearing on record during cross- examination of PW 2 Ramesh, inasmuch as during the visit of maternal aunt of victim Nanda to her house, said maternal aunt was very well treated by giving a gift of saree. This led the Sessions Court to construe that the relations between the couple were good and in fact, victim Nanda was in a position to behave with her own wish while dealing with her maternal relations. We have also seen that the learned Sessions Judge has discussed the evidence of PW 2 Ramesh regarding no rift between the married couple except the gynecological problem. Apparently, this substantive evidence of PW 2 Ramesh weighed with the learned Sessions Judge and he further dealt with both the written dying declarations. 8. For the sake of ready reference, the observations of the learned Sessions Judge, Cr.Appeal/369/1994 6 concerning two dying declarations are narrated as under:- " 12. While scanning the truthfulness and genuineness of the dying declaration(s), it is necessary to verify the contents of both the dying declaration. It appears from the dying declaration, Exhibit 26 that the deceased cried and shouted at the time of the incident and so hearing her shouts and cries, her husband (the accused) mother- in-law and neighbours came and extinguished the fire. But these contents are absent in the another dying declaration, exh.19, which is recorded subsequently i.e. only after a gap of 15 minutes. There is no mention about the mother-in-law and the neighbours. In the first dying declaration, exh.26, it appears that the accused had opened the talk about the white discharge. On the other hand, exh.19 goes to show that the deceased herself opened the talk about her white discharge with her husband, the accused. Therefore, the statement(s) of the deceased in both the dying declaration(s), exh.26 and 19 are quite inconsistent with each other, on this point." 9. Apart from the above discrepancies in two Cr.Appeal/369/1994 7 dying declarations, what weighed with the learned Sessions Judge is the silence of victim Nanda for about three hours as the first dying declaration was apparently made at 5.20 p.m. whereas, three hours earlier, she was admitted in the hospital by the accused and was under treatment. 10. We have also seen that the learned Sessions Judge has discussed regarding putting of thumb impression on two dying declarations and had gathered suspicion regarding authenticity of these dying declarations. It is also apparent that apart from the brother of victim Nanda PW 2 Ramesh, no other witness was examined by the prosecution and this weighed with the learned Sessions Judge, mainly, as to non-examination of any of the persons, who extinguished the fire. Considering the above factual position and considering the observations which promoted the learned Sessions Judge to discard the evidence of prosecution, holding that it was not sufficient to prove the guilt of the accused beyond reasonable doubt, in our view, there is nothing to interfere with the said impugned judgment and order, considering the scope of this Court while dealing Cr.Appeal/369/1994 8 with the appeals against acquittal. This is more so, when initial judgment and order of acquittal was passed about seventeen years ago. 11. In the result, there is no merit in the appeal preferred by the State and the same is disposed of with following order. ORDER Criminal Appeal No. 369 of 1994 (State of Maharashtra Vs. Ashok Sajan Patil) stands dismissed. (A.R.JOSHI, J.) (A.H.JOSHI, J.) ... akl