apeal29­04 .sxw jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 29 OF 2004 Dilip Nana Misal R/w 44, Raut Wadi, Kothrud, Pune (Presently at Yerwada Prison Pune .. Appellants (Original Accused ) The State of Maharashtra .. Respondent Mr. J. P. Yagnik, APP for the State CORAM : P.V. HARDAS & N. D. DESHPANDE, JJ. DATE : 16th March, 2011. ORAL JUDGEMENT (Per N. D. Deshpande J): 1. This appeal impugns the correctness of the judgment and order of conviction and sentence, both, dated 24 th November, 2003 passed by the learned II Additional Sessions Judge, Pune in Sessions Case No.371 of 2003. 2. By the impugned judgment and order, the appellant/ accused has been held guilty under Section 302 of the Indian Penal Code for committing of murder of his wife – Manda (aged 40 years) who was burnt to death and, therefore, directed the accused to suffer rigorous imprisonment for life and to pay fine of Rs.2000/­ 1 apeal29­04 .sxw 3. The prosecution case, as is disclosed from the impugned judgment, can briefly be stated thus: i. Deceased Manda was legally wedded wife of accused and the couple has two daughters and a son namely Pramod (PW­1) aged 16 years. Elder daughter got married and the marriage expenses were borne by deceased­Manda’s brother namely Ankush Jorkar (PW­2). At the material time, they were residing in single room situated in a slum at Rautwadi, Kothrud, Pune. The alleged incident of fire took place in their house where the deceased caught fire and sustained burns 31 to 34% on 30.5.2003 around 9.30 p.m. Deceased Manda was earning Rs.100/­ per month as maid servant and accused was idle. ii. According to prosecution, there were frequent quarrels between the couple and the reason stated is that the accused was always demanding money from Manda for liquor as he was addicted to drink. On a fateful night, there was quarrel between them when accused demanded Rs.100/­ for liquor which his wife Manda refused to give and during quarrel he poured kerosene from a Stove on her person and set her on fire with matchstick and ran away. Deceased Manda in burnt condition, came out of the house and sat under nearby public water tap 2 apeal29­04 .sxw to save herself from fire. It is further stated that their son namely Pramod (PW­1) had witnessed the alleged incident through a gap of the door which was latched form inside. Immediately thereafter, Manda changed her cloths and came out of the room and along with her son Pramod went to her brother’s ( Ankush­PW­2) house, residing at nearby the slum. Manda narrated the incident to his brother­ Ankush and on the same night she was admitted by her brother Ankush in Krishna Hospital at Kothrud, where she was given treatment for three weeks and then she was shifted to Sassoon Hospital, Pune on 18.6.2003 for further treatment, and she succumbed to burn injuries on 7.7.2003 due to septicaemia, nearly about five weeks after the incident. iii. Medical Officer of Krishna Hospital informed Kothrod Police Station and API Maruti Yadav (PW­3) on duty, on receiving the information from Krishna Hospital, in the midnight itself, visited the hospital where Manda was admitted for treatment. He made enquiry with the Medical officers ­M.R. Choudhari (PW­6) on duty about condition of Manda. Then he recorded her statement with the assistance of writer – Constable Shri Gaikwad who was accompanying him. It was her complaint against her husband which was treated as F.I.R (Exh.16). Accordingly C.R. No. 195 of 2003 came to be registered 3 apeal29­04 .sxw against the accused under Section 307 and 506 of the Indian Penal Code. The F.I.R. (Exh.16) has been relied on by the prosecution as her dying declaration upon death of Manda and further investigation was carried out by A.P. I. V.R.Shinde (PW­10) of Erandvana Police station in whose jurisdiction the alleged offence took place. iv. During investigation API Shinde recorded the statements of witnesses including Pramod (PW­1) an alleged eye witness, Ankush Jorkar­PW­4 brother of deceased Manda who helped her in admitting in Hospital. Panchanama of the scene of offence was also drawn at Exh.21. Deceased’s clothes were also taken charge under the Panchanama Exh.30 and were sent to Chemical Analyzer along with Muddemal­ Stove and matchbox. C. A. report is at Exh.34. v. Accused was arrested by Mr. Jethe, Police Head Constable, Kothrud Police Station, in the evening. Statements of Medical Officers Dr. Jitendra J. Walture­PW­4 of Krishna Hospital and Dr. Nidmarti Maheshkumar­PW­7 of Sassoon Hospital were recorded. Medical papers have been filed on record. After death of Manda, her dead body was sent for postmortem. Dr. Milind R. Choudhary­PW­6 conducted the postmortem examination on the dead body of deceased Manda. 4 apeal29­04 .sxw Postmortem report is at Exh.23. Dr. Choudhary­PW6 described total 32% superficial to deep burn injuries as follows: (1) HNF ..1%, (2) Ant. trunk ..9%, (3) Post trunk ..5%, (4) on right upper limb ..4%, (5) on left upper limb ..4%, (6) on right lower limb ..5% and (7) on left lower limb ..4%. Dr. Choudhary (PW­6) opined cause of death septicaemic shock due to burn. Thereafter, API Shinde (PW­10) submitted charge sheet against the accused. 4. The accused was committed to the Court of Sessions for trial. The trial Court vide Exh.2 framed charge against the appellant accused. The appellant­ accused pleaded not guilty and claimed to be innocent. 5. It is stated that the accused is in custody throughout and was given legal aid to defend himself during trial. 6. According the defence, and in the statement of accused recorded under section 313 of the Criminal Procedure Code, 1973, 5 apeal29­04 .sxw it has been stated that Manda had threatened to commit suicide and made an attempt during quarrel and died due to burns at her own after five weeks. She was always quarreling with the accused because he could not repay Rs.15000/­ which her brother­ Ankush PW­2 incurred on the marriage of their elder daughter. Earlier also she had given similar threats to commit suicide . On the fateful night, she picked up quarrel on the same issue because her brother Ankush PW­2 wanted his money back from the accused. Accused denied the alleged FIR as her dying declaration and stated that it was a false complaint recorded by the police at the instance of her brother and his wife Ranjana Jorkar, in order to save her from arrest by police for the charge of “attempt to commit suicide”. 7. During the trial the prosecution examined in all 10 witnesses namely (1) PW­1 Pramod Dilip Misal, son of accused, (2)PW­2 Ankush Jorkar, brother in law of accused, ( 3) PW­3­API Maruti Yadav,(4) PW­4 Dr. Jitendra J. Walture, Medical Officer of Krishna Hospital Pune (5) PW­5 ­Pandurang B. Dangat, Panch witness (6) PW­6 Dr. Milind R. Choudhary, the Medical officer, Sassoon Hospital, Pune, (7) PW­7 Nidmarti Maheshkumar, surgeon working in Krishna Hospital, Pune, (8) PW­8 Vijay Kakade another Panch Witness (9)PW­9, Dr. Kishore N. Devere, Sassoon Hospital, Pune (10) PW­10 Vitthal Shinde­Investigating Officer. 6 apeal29­04 .sxw 8. Heard Mr. Yagnik learned APP for the State. With the assistance of learned APP, we have examined the evidence on record minutely. It is, therefore, useful to refer the evidence of witnesses and the evidence relied on by the prosecution. 9. The prosecution case mainly rests on the evidence of sole eye witness PW­1 Pramod so also another piece of evidence relied on by the prosecution is dying declaration of deceased Manda, (FIR Exh.16, a complaint of deceased Manda). Other evidence namely Panchanama of the scene of offence, clothes of deceased, evidence of Panch witnesses so also medical evidence including postmortem report Exh.23 stating cause of death, has not been seriously challenged by the defence in the light of the suggestion given by the defence that Manda attempted to commit suicide as per her threats. 10. Firstly, coming to the evidence of dying declaration in the form of FIR, which is a complaint of the deceased at Exh.16 dated 31.5.2003. According to the prosecution, it requires some consideration because the same has been relied on by the learned Trial Court. On this point, PW­3 Maruti Yadav has been examined. Admittedly, FIR Exh.16 is not recorded by PW­3 PSI Maruti Yadav, but it is recorded by a writer Police Constable namely Shri Gaikwad. It is in the handwriting of Shri Gaikwad. The said writer Police 7 apeal29­04 .sxw Constable Gaikwad could not be examined. The contents of the same has not been duly proved and as such, such statement or the complaint cannot be accepted as dying declaration, duly proved, for further consideration. Dying declaration of a patient who sustained burns is an important piece of evidence and the Senior Police Officer who was present namely PSI Yadav himself should have recorded the same. As such, in our opinion, the prosecution has failed to prove the dying declaration of the deceased and the same therefore, cannot be used as evidence for any purpose, much less for basing conviction and therefore it is discarded. In our opinion, it cannot be forgotten that the dying declaration is an important piece of evidence and it ought to have been recorded and proved by the Senior Police Officer, which in a present case, he did not do so and assigned the said work to a writer constable who has not been examined , since dead as told. It is further seen that the alleged dying declaration/statement did not bear the endorsement of Medical Officer about the fitness of the patient. 11. Prosecution further placed reliance on the direct evidence. Now coming to the direct evidence recorded in this case, a sole eye witness i.e.PW­1 Pramod, a young boy of 15 years who was also residing with his parents (i.e. Mother­deceased Manda and accused­father ) sisters, at the relevant time. According to the prosecution, he is an eye witness to the incident. He had seen the 8 apeal29­04 .sxw incident through a gap of the door from the outside and deposed against the accused who was seen quarreling with his mother in the night. He also deposed accused his father for his addiction and for his quarrelsome nature. We have minutely scrutinized his evidence recored in this case. According to him, he had seen his father pouring kerosene on the body of his mother and setting her on fire with a matchstick during quarrel, by peeping inside through a gap of the door when it was latched from inside. There is nothing on record to show that such situation was possible and he had an opportunity to see the incident for giving details. The panch witnesses did not support such suggestion of having such possibility or opportunity for this witness to peep through a gap of the entrance door which is made of a single plank. In his cross examination, PW­1 admitted that they are having only one room and there is a single plank door. 12. We have carefully gone through the evidence of PW­1 Pramod, a sole eye witness of this case. He appears to be interested in his mother and uncle. At the material time, he was a young boy of 15 years and, therefore, possibility of tutoring such witness cannot be ruled out. His testimony, therefore, is not free from doubt, therefore, cannot be accepted as all true for having witnessed the incident which he described. We therefore do not approve the conviction based on such evidence. In that view of the 9 apeal29­04 .sxw matter, the appeal deserves to be allowed. Hence we proceed to pass the following order: O R D E R Criminal Appeal No. 29 of 2004 is allowed and the conviction and sentence is quashed and set aside and the Appellant is acquitted of the offence with which he was charged and convicted. Fine amount, if paid, be refunded to him. Since the Appellant is in jail, he be released forthwith, if not wanted in any other case. ( N. D. DESHPANDE, J. ) ( P.V. HARDAS, J.) 10