1 Criminal Appeal No.24 of 2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.24 OF 2011 The State of Maharashtra Through, Police Inspector, Police Station, Shirur Anantpal, Dist. Latur APPELLANT VERSUS 1. Bhagwan S/o.Dashrath Naikwade, Age-28 years, Occu-Labour, R/o.Kumbhewadi, Tq.Chakur, At Present Shirur Anantpal, Dist. Latur, 2. Dropatibai @ Dhurpatabai W/o. Dashrath Naikwade, Occu-Labour, R/o.Kumbhewadi, Tq.Chakur, Dist. Latur (Leave refused) RESPONDENTS Mr.S.D.Kaldate, learned A.P.P. for appellant/State. Mrs.R.R.Mane, learned counsel for respondent no.1 (Appointed) Leave refused in respect of respondent no.2. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 09/08/2011 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. Challenge in this appeal by the State is to the correctness of 2 Criminal Appeal No.24 of 2011 the judgment of acquittal of the respondents for the offence punishable u/s. 302 of the IPC in Sessions Case No.29/2008 by the Additional Sessions Judge, Nilanga, vide his judgment and order dated 18/02/2010. 2. In brief, the facts of the prosecution case are as under : (a) On 18/06/2008, Anita, wife of respondent Bhagwan Dashrath Naikwade was admitted in Civil Hospital because of burn injuries. On 19/06/2008, father of Anita, Vishwanath Gangaram Gone (P.W.No.7) gave an application (Exh.40) in Shirur Anantpal police station. On the basis of this application, AD No.22/2008 was registered. Inquiry of the said AD was entrusted to Head Constable Thakur. During AD inquiry, Police Head Constable Thakur visited the place of incident i.e. residential shed in the agricultural land of Dr.Balaji Kashinath (P.W.No.5) and drew spot panchnama (Exh.15) in between 3.00 p.m to 4.00 p.m. in presence of panch witnesses. From the spot, he had seized one stick (Article 1), burnt pieces of saree (Article 2) collectively and plastic bottle containing residue of kerosene (Article 3). (b) On 19/06/2008, around 7.00 p.m., Police Head Constable Dnyanoba Bhimrao More (P.W.No.4) attached to Gandhi Chowk Police Station, Latur recorded the statement of Anita at Exh. 28 and forwarded it to Shirur Anantpal Police Station. On the basis of said statement, an offence at Cr.No.57/2008 was registered against 3 Criminal Appeal No.24 of 2011 the respondent Bhagwan and his mother Drupadabai for an offence punishable u/s. 307, 323, 504 r/w. 34 of IPC. On the same day, at about 8.10 p.m. to 9.00 p.m., second dying declaration of Anita at Exh.48 was recorded by Special Executive Magistrate Vinayak Nagnath (P.W.No.9). (c) Initial investigation in CR No.57/2008 was conducted by P.S.I. Madhukar Puri (P.W.No.10). On 20/06/2008, he had recorded statements of father, mother and brother of Anita. On that day, he arrested respondent Bhagwan under arrest panchnama Exh.52 at 9.15 p.m. (d) Further investigation in the said crime was taken over by Rafiyoddin Patel (P.W.No.11), Police Inspector attached to Shirur Anantpal Police Station. He had also recorded statements of 8 witnesses. He had then recorded statement of Sugriv Naikwade. He also seized cloths of respondent Bhagwan under panchnama Exh.43. (e) While under medical treatment, on 22/06/2008, Anita succumbed to injuries. Dr.Umakant Shelke (P.W.No.1) Medical Officer attached to civil Hospital, Latur intimated about the death of Anita by letter at Exh.13 to Gandhi Chowk Police Station, Latur. Inquest panchnama Exh.16 was drawn on the dead body of the deceased in the Civil Hospital at Latur. Then the dead body was referred for autopsy. 4 Criminal Appeal No.24 of 2011 (f) Dr.Jiyauddin Siddhiqui, Medical Officer attached to Civil Hospital, Latur conducted autopsy on the dead body of Anita on 23/06/2008. On external examination, he had noticed that the deceased had sustained 71% superficial to deep burns with septicemic shock. He also found line of redness and healing by granulation, and also pus and sloughing. On internal examination, he found that internal organs were congested. Accordingly, he prepared post mortem report at exh.21. He opined about cause of death due to 71% superficial to deep burns with septicemic shock. On 23/06/2008, inquest panchnama and post mortem report were forwarded to Shirur Anantpal Police Station. On that day, supplementary statement of father of Anita Vishwanath and others were recorded. On 25/06/2008, some more statements were recorded. On that day, seized property during investigation was forwarded to Chemical Analyser alongwith letter at Exh.54 and the report of Chemical Analyser at Exh.17 was received. On 31/07/2008. original accused no.2 Draupadabai was arrested. On completion of investigation, charge sheet was filed before J.M.F.C. Nilanga. (g) On committal of trial to the Court of Sessions, Trial Court framed charge at Exh.5 against the respondent Bhagwan for an offence u/s. 302 of IPC and against respondent Bhagwan and his mother for an offence punishable u/s. 498-A r/w. 34 of IPC. To prove the guilt of the respondent, prosecution has examined in all 11 witnesses. Defence of respondent is of total denial. On appreciation 5 Criminal Appeal No.24 of 2011 of evidence of prosecution, Trial Court pleased to acquit respondent Bhagwan for the offence punishable u/s. 302 of the IPC and accused no.2 Draupadabai for an offence punishable u/s. 498-A of the IPC. Appellant Bhagwan was convicted for an offence punishable u/s. 498-A of the IPC. (3) State has filed Criminal Application No.2038/2010 seeking leave to file an appeal against the acquittal of the respondent and his mother. In the said application, by our order dated 17/01/2011, we have refused leave to file appeal against respondent no.2/original accused no.2 Draupadabai and granted leave to file an appeal against acquittal in respect of present respondent no.1 only. (4) Even though, prosecution has examined in all 11 witnesses to establish the guilt against the respondent before the learned Lower Court, evidence in respect of offence of murder is mainly in the nature of dying declarations of the deceased recorded by P.W.No.4 Dnyanoba Bhimrao More at Exh.28 and the second dying declaration recorded by the Special Executive Magistrate Vikrant Nagnath (P.W.No.9) at Exh.48, evidence of Sopan Madhav Ingale (P.W.No.6), the neighbour and evidence of Dr.Balaji Kashinath Devangre, the owner of the agricultural land where the respondent was working as a labour alongwith his wife. (5) For better appreciation of evidence on record and of 6 Criminal Appeal No.24 of 2011 submissions of learned A.P.P. for State, and learned counsel Mrs.Mane for respondent/original accused, it is necessary to advert to the evidence of these material witnesses. (6) Before adverting to the evidence of the material witnesses, it is to be noted that the respondent has nowhere disputed that the death of Anita, wife of respondent was an un-natural death due to burn injuries. The only question for consideration in this appeal is whether the respondent was responsible for the un-natural death of Anita and whether the evidence of prosecution witnesses is sufficient to conclude that the respondent is responsible for this un-natural death. (7) It is in the evidence of Dr.Balaji Devangre (P.W.No.5) that he was attached to Rural Hospital, Babhalgaon. His native place is at Shirur Anantpal and he is having ancestral landed property in the village. Respondent Bhagwan Naikwade was working in their agricultural field on yearly basis. He was employed 3 months prior to Gudhipadwa by his father. Respondent was residing in the shed constructed in the agricultural field. He has further stated that initially respondent was alone residing in the shed but later on his wife and minor son came to reside in the said shed. While giving evidence about the day of incident, he has stated that on 18/06/2008, he was present in his private hospital at Shirur Anantpal. At that time, appellant brought his wife Anita in his 7 Criminal Appeal No.24 of 2011 hospital. Anita had sustained 71% burn injuries. She was un- conscious. She was unable to speak. He has further stated that as no facility of instant medical treatment was available in his hospital, he advised respondent to take Anita to P.H.C. Shirur Anantpal. Later on Anita was taken to Civil Hospital Latur. Nothing was elicited from his cross examination. (8) It transpired from the evidence of Sopan Ingale (P.W.No.6) that since last 5 years, he was working as a labour in the field of one Rudrawar. He and his wife were staying in the shed constructed in the agricultural field of Dr.Devangare (P.W.No.5). He has stated in his evidence that respondent was residing in the adjoining shed with his wife Anita and with their minor child. On some occasion, quarrel took place between Bhagwan/respondent and his wife Anita. He and one Trimbak Shivane used to pacify the quarrel on some occasions. On the date of incident also, he and Trimbak have convinced respondent Bhagwan. He has stated that there after respondent went to his house. After some time, he heard some shouts. He saw Anita came running out in burning condition from her shed. Respondent was following her with the water pot in his hand, but Anita jumped in the water tank, which was prepared to provide water to the cattle. On their instructions, respondent took Anita to the hospital. In his cross-examination, an omission is proved from the evidence of Investigation Officer that the fact is not found recorded in his police statement that he saw Anita came running in burning 8 Criminal Appeal No.24 of 2011 condition from her house and respondent was following her with the water pot in his hand. His evidence is also silent on the point that Anita told him that she sustained burn injuries at the hands of the respondent. (9) It is in the evidence of Dnyanoba More (P.W.No.4) that on 19/06/2008, he was instructed by P.S.O. Gaikwad on phone to visit Civil Hospital, Latur and to record dying declaration and also to instruct Special Executive Magistrate to record the dying declaration of Anita. He has further stated that accordingly he visited Civil Hospital Latur. In the Civil Hospital, he inquired with Medical Officer and after Medical Officer examined Anita and certified that she is conscious and able to speak and certified accordingly, he had recorded dying declaration of Anita, which is at Exh.28. He has stated in his evidence that Anita disclosed before him that she married with Bhagwan/respondent prior to 5 years. Her husband works as agricultural labour in the field of Dr.Devangre at Shirur Anantpal. She told that they were residing in the field of Dr.Devangre and she is having one son by name Sagar aged about 1 year. Her husband was suspecting her character and used to beat her. Her husband was in habit to drink liquor. She further told that on 18/06/2008, she and her husband were in their house at 11.00 a.m. Her husband initially assaulted her by suspecting her character and abused her. Thereafter, her husband poured kerosene from the bottle on her person and set her ablaze. She started 9 Criminal Appeal No.24 of 2011 shouting loudly. Neighbourers came there. Then she came out and jumped in the water tank constructed to provide water to the cattle. Then her neighbourer and her husband brought her to the hospital at Shirur Anantpal, in the hospital of Dr.Devangre. Thereafter, she was brought in the hospital at Latur at 4.00 p.m. After recording of her statement, it was readover to her which she admitted to be true and correct and obtained her right leg toe impression. After recording her statement, he addressed requisition letter to Special Executive Magistrate to record dying declaration of Anita. He has stated in his cross examination that he had no knowledge where relatives of Anita met her before recording of her statement. Medical Officer examined Anita, at about 7.00 p.m., but he had not mentioned timing of recording of dying declaration of Anita in the statement at Exh.28. He has further stated in his cross examination that he had not mentioned in his statement that the relatives of Anita were instructed to go out of the ward. He has denied that Anita was screaming when her statement was recorded. He has further denied that Anita was not able to speak continuously during recording of her statement. He has further stated that he obtained toe impression of the right leg on her statement. He has denied that the statement of Anita was recorded as per instructions of her parents and brother. 10. It is stated by P.W.No.9 Vikrant Nagnath Gaikwad that on 19/06/2008, he received requisition letter from Gandhi Chowk Police Station in writing to record the dying declaration of Anita Bhagwan at 10 Criminal Appeal No.24 of 2011 about 8.00 p.m. After receipt of requisition, he went to Civil Hospital, Latur and introduced himself to the Medical Officer present in the burn ward. After Medical Officer examined and certified that Anita was able to give her statement, he recorded statement of Anita at Exh.48. He has further stated that before recording statement of Anita, he himself put certain preliminary questions to Anita and ascertained that she was in a position to give her statement. He has further stated in his evidence that in dying declaration, Anita disclosed that she married with Bhagwan 5 years back. The incident took place at about 1.00 p.m. on 18/06/2008. At that time, she was sleeping on the cot in the house. Her husband came from the field. He dragged her from the cot by holding her hair. Her husband then assaulted her with kick blows and belt. Then she told her husband that she should be taken to the house of her parents. Then one Patil came there and tried to convince her husband. Then her husband told that he will opt to go to jail for one or 2 years, but he will not keep her alive. Then he poured kerosene from the plastic bottle on her person and set her on fire. She had further disclosed that her mother in law was near her and was insisting her husband to drop her at her parents house. Her mother in law and her husband committed the act together. After her dying declaration was recorded, contents therein were readover to her, which she admitted to be true and correct. Then he proved contents of Exh.48. This dying declaration was recorded in between 8.10 p.m. to 9.00 p.m. He has stated in his cross examination that he 11 Criminal Appeal No.24 of 2011 reached in the hospital within 5 minutes after receipt of the letter. His house is situated at the distance of 2 kms. from the hospital. He has further admitted that Anita was seriously injured and her relatives were present near her when he reached in the hospital. He has stated that he had no knowledge whether respondent was in the hospital or not. IV fluid was provided to her. He has further admitted Anita has not stated about any illtreatment. He has further stated that he is residing at Vaishali Nagar, Latur. He has further admitted that he is unable to translate Marathi to English and vis-a- vis. He has denied that he had obtained right leg toe impressions of Anita on the pre-prepared dying declaration. He has denied that the dying declaration was recorded as stated by the relatives of Anita. 11. In the light of this evidence, we have heard learned A.P.P. for appellant State and learned counsel Mrs.Mane for appellant. During the course of submissions across the bar, both of them have also taken us through the judgment delivered by the Trial Court. Our attention is drawn towards the observations of the learned Trial Court in paragraph 18 to paragraph no.22, wherein, the learned Trial Court has discussed about these 2 dying declarations. Our attention is further drawn towards the observations of the Trial Court in paragraph no.23, wherein it is observed by the learned Trial Court that as there is material variance and contradictions in the dying declarations at Exh.28 and at Exh.48, he discarded both the dying declarations, and gave benefit of doubt to the respondents. During 12 Criminal Appeal No.24 of 2011 the course of submissions across the bar, learned A.P.P. appearing for appellant State has urged that there is no material in-consistency between the 2 dying declarations and as the contents of both the dying declarations are proved by examining P.W.No.4, the scribe of dying declaration Exh.28 and P.W.No.9 Vinayak Gaikwad, scribe of dying declaration at Exh.48. Learned A.P.P. further urged that learned Lower Court had committed an error while observing in paragraph no.23 of the judgment impugned that because of the material contradictions in these 2 dying declarations, those 2 dying declarations to be discarded. As against this, learned counsel appearing for the respondent has supported the judgment of the Lower Court acquitting the respondent. 12. Perusal of the evidence recorded before the Trial Court, the neighbourer Sopan Ingale (P.W.No.6), who was the person present at the spot when Anita came out from his house in burning condition, have not uttered a single word that respondent set her on fire. Evidence of Dr.Balaji Devangre, in whose hospital she was immediately taken has stated in clear terms that when Anita was brought in his hospital immediately after the occurence of the incident, she was un-conscious and was not able to speak. Evidence of the parents i.e. father of Anita is also silent on the point about the disclosure of Anita before him before her dying declarations were recorded. Thus the sole evidence require consideration whether the contents of the dying declarations are liable to be accepted or not. 13 Criminal Appeal No.24 of 2011 13. In the first dying declaration, there is no reference of the Patil, who had separated the quarrel between the respondent and Anita. Again the first dying declaration is silent on the point that Anita was resting on the cot when respondent came from the field and dragged her from the cot and started assaulting with kick blows and belt and further respondent told her that today he was not going to spare her and he is ready to go in jail for one or 2 years. First dying declaration is also silent on the point that mother of the respondent Drupadabai was insisting to her son that she should be dropped to her parents house and thereafter the incident occurred. There is also difference in the timings of the occurence of the incident as in the first dying declaration at Exh.28, the incident alleged to have occurred around 11.00 a.m. while in the second dying declaration, the time of incident is mentioned as 12.00 noon to 1.00 p.m. As against this, evidence of Dr.Devangre discloses that around 1.00 p.m.she was brought in his hospital. In the first dying declaration, there are no allegations, no averments against the mother of the respondent. As against this, in the second dying declaration, Anita has tried to involve mother of the respondent in the commission of the offence. Considering these variances in both these dying declarations, we are of the considered view that these 2 dying declarations are not consistent with each other. 14. Division Bench of this Court has observed in the matter of Suresh versus State of Maharashtra, 2005 All MR (Cri) 1599, to 14 Criminal Appeal No.24 of 2011 which one of us (P.V.Hardas, J.) is a party, that in the cases rests on multiple dying declarations, if one dying declaration is accepted, it will falsify the other, in such cases, both the dying declarations to be discarded. The view is upheld by the Division Bench of this Court in Kamalbai Gorakh Koli and others versus State of Maharashtra, 2011 ALL MR (Cri) 1406, by holding that, “in cases resting on multiple dying declarations the Courts expect consistency in respect of the crux of the facts leading to the incident. Two dying declarations are contradictory to each other. Acceptance of one dying declaration necessarily renders the other as false. Mere repetition of allegations against one of the accused would not render both the dying declarations acceptable.” 15. The conviction against the respondent can not be based upon the dying declarations at Exh.28 and 48. In view of the discussion made in the above paragraph, and considering the view taken by this bench in the judgments (cited supra), we do not find any fault in the observations of the learned Trial Court, particularly in para no.23, discarding the dying declarations and acquitting the respondents for the offence punishable u/s. 302 of the IPC. The view taken by the learned Lower Court is a probable view to be taken. We also do not find any perversity in the judgment of acquittal passed by the learned Lower Court. In catena of judgments, it is held by the Apex Court that if the view taken by the learned Court, while acquitting the accused is a probable view and if there is no perversity in the 15 Criminal Appeal No.24 of 2011 findings recorded by the Lower Court, then in its Appellate Jurisdiction, the Appellate Court is not expected to interfere in the findings recorded by the learned Lower Court. 16. In substance, the appeal is devoid of any merit, hence liable to be dismissed. Accordingly we dismiss this appeal. 17. Before parting with the judgment, we have to appreciate the able assistance provided by the learned counsel Mrs.Mane while deciding the appeal. We, however, quantify the fees payable to the learned counsel for respondent in the sum of Rs.5,000/- (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/AUG. 2011/cri.appeal 24-11