Crim.Appeal 291/94 & Crim.Revn.Appln.84/94 - 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.291/1994 AND CRIMINAL REVISION APPLICATION NO.84/1994 CRIMINAL APPEAL NO.291/1994 The State of Maharashtra. ...Appellant.. (Org.complainant) Versus 1] Suryakant alias Barikrao @ Balu s/o Kondiba Kudke, age 25 yrs., occu.agril., r/o Kanadi Ghat Tq. & Dist.Beed. 2] Shivaji s/o Rama Matkar, age 22 yrs., occu. & r/o as above. 3] Yedba s/o Kondiba Kudke, age 27 yrs., occu. & r/o as above. 4] Sakharam s/o Dadahari Zodge, age 30 yrs., occu. & r/o as above. 5] Popat s/o Dashrath Matkar, age 32 yrs., occu. & r/o as above. 6] Sain @ Chandrasen s/o Dagdu Zodge, age 25 yrs., occu. & r/o as above. ...Respondents... (Org.accused) ..... Crim.Appeal 291/94 & Crim.Revn.Appln.84/94 - 2 - Shri N.R. Shaikh, Advocate for appellant. Shri Girish Thigale, Advocate for respondents. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= CRIMIINAL REVISION APPLICATION NO.84/1994 Saraswatibai w/o Dagdu Pawar, aged major, occu.household, r/o Kanadi (Ghat) Tq. & Dist.Beed. At present residing at Golangri Post Chausala Tq. & Dist.Beed. ...Petitioner... Versus 1] Suryakant alias Barikrao @ Balu s/o Kondiba Kudake, age 26 yrs., occu.agril., r/o Kanadi (Ghat) Tq. & Dist.Beed. 2] Shivaji s/o Rama Matkar, age 23 yrs., occu. Agri., r/o Kanadi (Ghat) Tq. & Dist.Beed. 3] Yedba s/o Kondiba Kudake, age 27 yrs., occu. Agri., r/o Kanadi (Ghat) Tq. & Dist.Beed. 4] Sakharam s/o Dadahari Zodage, age 31 yrs., occu. Agri., r/o Kanadi (Ghat) Tq. & Dist.Beed. 5] Popat s/o Dashrath Matkar, age 33 yrs., occu. Agri., r/o Kanadi (Ghat) Tq. & Dist.Beed. 6] Sain @ Chandrasen s/o Dagadu Zodage, age 26 yrs., occu. Agri., r/o Kanadi (Ghat) Tq. & Dist.Beed. Crim.Appeal 291/94 & Crim.Revn.Appln.84/94 - 3 - 7] The State of Maharashtra. ...Respondents... (Nos.1 to 6 – org.accused) ..... Shri S.S. Choudhary, Advocate for petitioner. Shri K.M. Babhulgaonkar, Advocate for respondent nos.1 to 6 (absent). Shri N.R. Shaikh, APP for respondent no.7. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= CORAM: P.V. HARDAS & A.V. POTDAR, JJ. DATE: 09.12.2010 ORAL JUDGMENT (Per P.V. Hardas, J.) : 1] Since both these matters arise from the same judgment, the appeal and the criminal revision application are being decided by this common judgment. 2] Criminal Appeal No.291/1994 has been filed by the appellant – State challenging the judgment of the Additional Sessions Judge, Beed, dated 15.12.1993, in Sessions Case No.43/1993 acquitting the respondents-accused for offence punishable u/s 302, 452 r/w 149 of the Indian Penal Code. Criminal Revision Application No.84/1994 has been filed by the complainant also questioning the acquittal of the respondent nos.1 to 6 – accused. Crim.Appeal 291/94 & Crim.Revn.Appln.84/94 - 4 - 3] Such of the facts as are necessary for the decision of appeal and revision application are as under: PW 10 Ramkishan Panhalkar, Police Head Constable, who was attached to the Out Post of village Chausala under Neknoor Police Station, was on patrolling duty on 6.2.1993. At about 3-40 a.m., when he was in Chausala Police Station, a bullock cart arrived at the Bus Stand. PW 10 Head Constable Panhalkar, therefore, went towards the bullock cart and noticed Sumanbai having sustained burns. He, therefore, asked Sumanbai as to what had happened and Sumanbai had informed him that the accused had poured kerosene on her and had set her ablaze. He, therefore, took Sumanbai to the Police Chowki at Chausala and recorded her statement at exhibit 40. Sumanbai was immediately referred to the hospital along with the requisition at Exhibit 41. He then proceeded to village Kanadi and in the presence of panchas drew the scene of the offence – panchanama at Exhibit 23. Under the said panchanama, he seized bamboo stock, one plastic can, one bottle, burnt pieces of gunny bag and sticks. He thereafter recorded the statements of witnesses and arrested the accused. A communication was addressed to the Special Executive Magistrate for recording the statement of Sumanbai. PW 12 Vishwanath Magar, Special Judicial Magistrate, received the communication from the Police at Exhibit 45 asking him to record the dying declaration of Sumanbai. He accordingly proceeded to the hospital and contacted the Medical Officer and requested him to ascertain the condition of deceased. On being informed that Sumanbai was in a fit condition to give her statement, Crim.Appeal 291/94 & Crim.Revn.Appln.84/94 - 5 - recorded the statement of Sumanbai at Exhibit 46. Further investigation came to be conducted by PW 13 PSI Jadhav, who was attached to Neknoor Police Station. He seized the clothes of accused no.1 Suryakant and accused no.2 Shivaji under the seizure memo and arrested the other accused. According to him, he seized sticks and match stick as per the information of accused Popat and Sakharam under the panchanamas at Exhibits 28 and 29. The seized property was referred to the Chemical Analyser along with the requisition at Exhibit 47. The report of the Chemical Analyser is at Exhibit 50. On completion of the investigation, a charge- sheet against the accused came to be filed. On committal of the case to Court of Sessions, the trial Court, vide Exhibit 12, framed charge against accused no.3 for offence punishable u/s 498-A of the Indian Penal Code and against the other accused including accused no.3 u/s 148, 452 r/w 149, 302 r/w 149 of the Indian Penal Code and a charge simplicitor against accused no.1 Suryakant, accused no. 3 Yedba and accused no.5 Popat u/s 302 of the Indian Penal Code. The accused denied their guilt and claimed to be tried. Prosecution in support of its case examined 13 witnesses. The defence of the accused is of denial. The trial Court came to the conclusion that prosecution had failed to prove the offence against the accused beyond reasonable doubt and accordingly acquitted the accused. 4] In order to appreciate the submissions advanced before us by the learned counsel for the parties, it would be useful to refer to the evidence of the prosecution witnesses. Crim.Appeal 291/94 & Crim.Revn.Appln.84/94 - 6 - 5] PW 1 Rohidas, Police Patil of village Kanadi Ghat, is a witness to the scene of the offence – panchanama at Exhibit 23. He states that on 12.2.1993, in his presence, clothes of accused no.1 Suryakant, accused no.3 Yedba, accused no.4 Sakharam and accused no.5 Popat were seized by the Police under seizure memos at Exhibits 20 and 21. 6] PW 2 Saraswati, mother of deceased Sumanbai, states that she owns a house in village Kanadi Ghat consisting of two rooms. She further states that she along with her two sons, her mother Shevantabai and Sumanbai were residing. She further states that Sumanbai was married to accused no.3 Yedba 10 months prior to her death. She further states that after marriage, accused no.3 had asked that Sumanbai be permitted to reside at her mother’s place for about 12 months. She states that accused no.3 Yedba used to come to her house and used to sleep in the house. After about five months, Yedba stopped coming to her house, but used to take Sumanbai along with him in the evening. She states that Sumanbai conceived from accused no.3 and was pregnant by about six months at the time of her death. In respect of the incident, she states that after taking their dinner, they returned to bed. Thereafter she heard some one shouting to open the door. She identified the voice as that of accused no.5 Popat. Since she refused to open the door, the door was broken and six persons entered in the house, who were the accused. She states that accused no.1 Barikrao was carrying a can of kerosene Crim.Appeal 291/94 & Crim.Revn.Appln.84/94 - 7 - and accused no.3 Yedba was carrying a bottle of kerosene. Accused nos.1 & 3 then poured kerosene on Sumanbai and accused no.5 lighted a match stick and set Sumanbai ablaze. She also states that accused no.6 assaulted her mother Shevantabai while accused no.2 Shivaji assaulted her with a stick. Accused no.4 Sakharam assaulted her son while accused no.2 Shivaji brandished a dagger. She then states that after setting Sumanbai ablaze, all the accused fled from the scene. A bullock cart was called and Sumanbai was carried in the bullock cart and taken to Chausala Primary Health Centre. The Medical Officer asked them to take Sumanbai to the Civil Hospital at Beed. She then states that statement of Sumanbai was recorded by PW 10 Panhalkar. On Wednesday, Sumanbai succumbed to her injuries. She then states that about 3 days prior to the incident, accused Yedba had been insisting Sumanbai to abort the foetus. 7] In cross examination, PW 2 Saraswati has admitted that she was aware that accused no.3 Yedba was already married when the marriage with Sumanbai was solemnized. She has also admitted that financial condition of Yedba was sound. She has admitted that she had not stated in her previous statement that she, her husband and her brother were present at the marriage of Sumanbai. She has also admitted not to have stated that Shevantabai was also present at the time of marriage of Sumanbai. She has admitted not to have stated that one Narhari Brahmin had solemnized the marriage of Sumanbai with Yedba. Omission has been duly proved that she had not stated that Sumanbai lived at her house and Crim.Appeal 291/94 & Crim.Revn.Appln.84/94 - 8 - that Yedba had asked her to permit Sumanbai to reside in her house for 12 months. Omission has been duly pointed out that she had not stated that for a period of five months, Yedba used to come to her house and was sleeping in her house. Similarly, omission has been proved that she had not stated that Yedba used to take Sumanbai with him every day in the evening. Omission has been proved that she had not stated that she heard the cry asking her to open the door and that she recognized the voice as that of accused Popat. Omission has been proved that she had replied that she would not open the door and thereafter the door was broken. Omission has been duly proved that she had not stated that accused Barikrao was carrying a can of kerosene and accused no.3 Yedba was carrying a bottle. Omission has been proved that she had not stated that accused Shivaji assaulted her with a stick and that accused Sakharam assaulted her son Mohan. Omission has been proved that she had not stated that accused Shivaji brandished a dagger and threatened them. Omission has been proved that she had not stated that PW 10 Head Constable Panhalkar had met them at the Bus Stand and thereafter statement of Sumanbai was recorded. She has admitted not to have complained to the Police Patil or to the Sarpanch or any other person in the village about the incident. She has admitted that Sumanbai was unconscious when she was taken to Primary Health Centre at Chausala. She has further stated that on way to the hospital, Sumanbai, did not talk to them, but by gestures had indicated that she wanted to drink water. She has admitted that when an officer had come to record her statement, Sumanbai was not in a position to talk and, Crim.Appeal 291/94 & Crim.Revn.Appln.84/94 - 9 - therefore, the officer went away. She has denied the suggestion that on account of darkness, she could not identify as to who the assailants were. Omission has also been proved that she had not stated in her previous statement that 3 days prior to the incident, Sumanbai had told her that accused Yedba was insisting for aborting the foetus. 8] Prosecution has examined PW 4 Shevantabai, who deposes on similar lines as that of PW 2 Saraswati. In cross examination, she has admitted not to have stated in her previous statement about the presence of others at the time of marriage of Sumanbai with Yedba. She has admitted not to have stated that accused Yedba had asked them to keep Sumanbai at their house for 12 months. Similarly, omission has been proved that she had not stated that accused Yedba used to come to their house and used to sleep in the house and lateron used to take Sumanbai with him in the evening. Omission has been duly proved that she had not stated that she had heard the voice of accused Popat calling upon PW 2 Saraswati to open the door. Omission has been proved that an answer was given that the door would not be opened. She has admitted that her eye sight has become weak due to old age. Omission has been proved that she had not stated that accused Barikrao was carrying a can and accused Yedba was carrying a bottle. She has admitted that they had not informed either Police Patil or Sarpanch or any one in the village. Crim.Appeal 291/94 & Crim.Revn.Appln.84/94 - 10 - 9] Prosecution has examined PW 6 Parasram, brother of PW 2 Saraswati, who states that he was present at the marriage of Sumanbai with accused Yedba. He states that after marriage, Sumanbai was residing with her mother. In cross examination, he has admitted that his statement was recorded after two days of death of Sumanbai. Omission has been duly proved that he had not stated that he was present at the marriage of Sumanbai. He was confronted with portion marked ‘A’ in his statement to the effect that he had learnt about marriage of Sumanbai with accused no.3 Yedba. 10] Prosecution has also examined PW 7 Pappu, brother of deceased Sumanbai. Pappu was aged 10 years when his evidence was recorded. He states that he had heard the sound of knocking on the door and calling upon them to open the door. He further states that since the door was not opened, the door was broken opened and accused Barikrao was carrying a can while accused no.3 Yedba was carrying a bottle. He states that kerosene was poured on Sumanbai and she was set ablaze by accused no.5 Popat. In cross examination, he has admitted that he had fled from the spot and had not returned to the house for three days. He has admitted that his grand mother had instructed him to tell specific things. He has admitted that there was darkness in the house. He has also admitted that he was stating on the basis of the instructions of his grand mother. 11] Prosecution has examined PW 8 Narhari, who did not support the Crim.Appeal 291/94 & Crim.Revn.Appln.84/94 - 11 - prosecution and was accordingly declared hostile. PW 9 Gangadhar, Head Constable, deposes about registering offence vide Crime No.23/1993. He could not explain delay of four days in forwarding the report to the Judicial Magistrate. 12] Post mortem on the dead body of deceased Sumanbai was conducted by PW 5 Dr.Kishor Pedgaonkar, who noticed that Sumanbai had sustained 98% deep to superficial burns. He has opined that death of Sumanbai was due to cardio respiratory failure due to shock due to septicemia due to 98% burns. The post mortem is at Exhibit 33. 13] Dying declarations at Exhibits 40 and 46 can not be relied upon for sustaining the charge against the respondents-accused as neither PW 10 Ramkishan nor PW 12 Vishwanath, who are the scribes of the dying declaration, have proved the contents of the said dying declarations. A reference may usefully be made in this behalf to the judgment of the Division Bench of this Court in [1] Jivan Tulsiram Dhavali & another V/s State of Maharashtra ( 2008 ALL MR (Cri) 2018 and [2] Laxmibai w/o Maruti Satpute & others V/s State of Maharashtra (2010 ALL MR (Cri) 182). 14] As the contents of the dying declarations had not been proved, the dying declarations can not be read in evidence. Similarly, no reliance can be placed on the evidence of PW 2 Saraswati, PW 4 Shevantabai and PW 7 Pappu on account Crim.Appeal 291/94 & Crim.Revn.Appln.84/94 - 12 - of material improvements in respect of the core of the prosecution case. PW 7 Pappu has admitted that he had been tutored and was deposing as per the tutoring of his grand mother. More over, admittedly there was darkness in the house and the identity of the respondents-accused had not been established. Apart from that, prosecution has miserably failed to prove that Sumanbai was married to accused no.3 Yedba. The trial Court, therefore, in the face of such infirmed evidence acquitted the respondents-accused. 15] A circumstance on which the prosecution relied upon was the finding of kerosene on the clothes of accused. This is apparent from perusal of the report of Chemical Analyser at Exhibit 50. The incident is dated 5.2.1993 while the clothes came to be seized on 12.2.1993. In such circumstances, according to us, it is unbelievable that the clothes of the accused would retain the traces of kerosene, being volatile, for more than a week. In such circumstances, therefore, according to us, no reliance can be placed on the aforesaid circumstance. 16] We have heard the learned APP on behalf of the appellant-State and Shri S.S. Choudhary, learned counsel on behalf of the petitioner in Criminal Revision Application. We have also heard the learned counsel for the respondents-accused in the criminal appeal. We have perused the findings recorded by the trial Court as well as the evidence of the prosecution witnesses. On such perusal, according to us, the view taken by the trial Court can not be said to be a perverse view Crim.Appeal 291/94 & Crim.Revn.Appln.84/94 - 13 - warranting any interference in the appeal against acquittal. To us, it appears that the view taken by the trial Court is a possible view to be taken on the basis of evidence on record. In the light of that, therefore, according to us, the appeal filed by the State as well as the criminal revision application filed by the petitioner- complainant deserve to be dismissed. 17] Accordingly, the Criminal Appeal No.291/1994 and the Criminal Revision Application No.84/1994 are dismissed. (A.V. POTDAR, J.) (P.V. HARDAS, J.) ndk/sbb