1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.567 OF 2009 1. Saheblal s/o Jumassha Sayyad, Age 37 years, Occu.Labour, R/o Ahmedpur, District Latur 2. Ayub s/o Jumasha Sayyad, Age 35 years, Occu.Labour, R/o Ligdhal, At present Omerga (Court), Taluka Ahmedpur, Dist.Latur .. APPELLANTS VERSUS - State of Maharashtra .. RESPONDENT Shri S.J.Salgare, Advocate holding for Smt.S.S.Jadhav, Advocate for appellants Shri K.J.Ghute Patil, Assistant Public Prosecutor for respondent- State CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ DATE : 21st JANUARY 2010 ORAL JUDGMENT (Per Shrihari P.Davare, J.) 1. The challenge in this appeal is to the judgment dated 24.7.2009 rendered by learned Additional Sessions Judge, Udgir camp at Ahmedpur in Sessions Case No.18/2006 convicting and sentencing the appellants for the offences punishable under 2 Section 302 read with 34 of the Indian Penal Code and thereby directing them to undergo the sentence of imprisonment for life and to pay fine of Rs.1,000/- each with a default condition to suffer rigorous imprisonment for one month each for non- payment of fine. 2. The factual matrix of the prosecution case is as under. The appellant No.1 namely Saheblal is the husband of the victim namely Umidabee while the accused No.2 namely Ayub is the brother of accused No.1. The incident in question took place on 30th October 2005 at about 4.30 p.m. According to the prosecution, the deceased was doing agricultural work and was maintaining herself and her children. It is alleged that the accused No.1 was addicted to liquor. According to the prosecution, both the accused returned to the house and accused No.1 Saheblal demanded amount from Umidabee for consuming liquor. She refused for the same saying that she intended to purchase clothes for children on the festival of Id. Thereupon, according to the prosecution the accused No.1 Saheblal started assaulting and abusing the victim and further he brought a can of kerosene and poured it on the person of Umidabee. It is alleged that the accused No.2 namely Ayub instigated the accused No.1 saying that “finish her by burning”. Thereupon the accused No.1 set the victim Umidabee ablaze and her saree caught fire and her body was burnt. Thereupon Umidabee started shouting and came 3 out of the house and the persons nearby vicinity removed her to the hospital and therefrom she was shifted to S.R.T.R. Medical College and Hospital at Ambajogai for further treatment. 3. It is further the case of prosecution that P.W.5 Police Head Constable Shaikh Rafiq, who was attached to Ambajogai Police Station and was posted at S.R.T.R. Hospital at the relevant time, on receipt of the message from P.I. Jathale to record the statement of Umidabee, visited the S.R.T.R. Medical College and Hospital, Ambajogai at about 4.30 p.m. and approached to the concerned doctor P.W.4 Dr.Upendra Hublikar and made enquiry with him whether Umidabee was in a fit condition to give the statement. Thereupon P.W.4 Dr.Upendra Hublikar examined the patient Umidabee and opined that she was conscious and oriented. Thereafter P.W.5 Police Head Constable Shaikh Rafiq recorded the statement of Umidabee as per her version. He obtained her thumb impression thereon and also scribed his signature thereon, and same was treated as FIR (Exh.56). 4. The prosecution case further reveals that P.W.7 P.I. Shivaji Marekar was attached to Ahmedpur Police Station as P.S.I. at the relevant time and according to the directions from P.I. he registered the offence under Section 307 read with 34 of the Indian Penal Code at C.R.No.142/2005 and commenced the 4 investigation. Thereafter P.W.7 P.S.I. Marekar visited the place of incident and prepared the panchnama of scene of offence. During the course of investigation he received the inquest panchnama (Exh.41) and he also recorded the statements of witnesses. 5. The prosecution case further reveals that the victim Umidabee succumbed to the injuries while taking the treatment on 5.11.2005 at about 11.40 p.m. Hence Section 302 of the Indian Penal Code was incorporated in the aforesaid first information report. Moreover, the dead body of Umidabee was sent to S.R.T.R. Hospital, Ambajogai for post mortem examination. Dr.S.P.Tapase and Dr.I.M.Lakade performed autopsy on the dead body of Umidabee and post mortem notes are produced at Exh.61. Moreover, the prosecution case further reflects that on 25.11.2005 P.W.2 Balasaheb Nagargoje examined the accused No.1 and issued the medical certificate at Exh.46. Thereafter on 2.12.2005 P.S.I. Shinde of Ahmedpur Police Station attached the clothes of accused No.1 namely Saheblal under the panchnama. During the course of investigation the accused No.1 came to be arrested. Moreover, the muddemal articles were sent to Chemical Analyzer for examination purpose on 15.12.2005 along with forwarding letter (Exh.68) and after receipt of report from Chemical Analyzer and after completion of investigation, 5 charge-sheet came to be filed against the accused No.1 before the Judicial Magistrate, First Class, Ahmedpur. 6. However, accused No.2 was absconding and subsequently he came to be arrested by P.W.8 P.I. Dnyaneshwar Dongare, attached to Ahmedpur Police Station on 5.7.2006 and supplementary charge-sheet came to be filed against accused No.2 before the Judicial Magistrate, First Class, Ahmedpur. Moreover, since the offences levelled against the accused Nos.1 and 2 were triable by Court of Sessions, the case was committed to the Court of Sessions, Ahmedpur. The learned Additional Sessions Judge, Latur, camp at Ahmedpur framed the charge against accused Nos.1 and 2 for the offences punishable under Section 302 read with 34 of the Indian Penal Code at Exh.22. 7. To substantiate the charges levelled against accused Nos.1 and 2 the prosecution examined inasmuch as eight witnesses as mentioned below. P.W.1- Shaikh Magdoom Nabisaheb Shaikh, i.e. the brother of the deceased Umidabee – turned hostile. P.W.2- Dr.Balasaheb Shankarrao Nagargoje who examined the accused No.1 and issued medical certificate at Exh.46 6 P.W.3- Shaikh Ahmedsaheb Kalimuddin, neighbour of the accused – turned hostile P.W.4- Dr.Upendra Hublikar who gave endorsement on the dying declaration (Exh.56) P.W.5- Police Head Constable Shaikh Rafiq Hajimoddin who recorded the dying declaration of deceased Umidabee on 2.11.2005 (Exh.56) P.W.6- P.I. Dinkar Shinde, Investigating Officer P.W.7- P.I. Shivaji Marekar, another Investigating Officer P.W.8- P.S.I. Dnyaneshwar Dongare, the Officer who arrested accused No.2. 8. The defence of the accused Nos.1 and 2 was of total denial and they opposed the charges levelled against them and claimed to be innocent. After assessing the evidence adduced and produced by the prosecution the learned trial Judge arrived at a conclusion that the accused Nos.1 and 2 are guilty for the offences punishable under Section 302 read with 34 of the Indian Penal Code and convicted and sentenced them as aforestated. Being aggrieved and dissatisfied with the said judgment and order, accused Nos.1 and 2 have preferred the present appeal praying quashment thereof. 7 9. The pivot of the prosecution case solely revolves around the dying declaration recorded by P.W.5 Shaikh Rafiq i.e. (Exh.56) and hence we feel it necessary to peruse the deposition of P.W.5, wherein he stated that he was attached to Ambajogai Police Station since 2001 to 2006 and on 2.11.2005 he was working at the Chowki of S.R.T.R. Hospital at Ambajogai and at about 2.00 p.m. he received a message from P.I. Jathale to record the statement of Umidabee. Accordingly, at about 4.30 p.m. he approached the concerned doctor i.e. P.W.4 Dr.Upendra Hublikar and enquired with him whether Umidabee was in a fit condition to give her statement. Thereupon P.W.4 Dr.Upendra Hublikar examined the said patient and opined that she was conscious and oriented. He further stated that accordingly he recorded the statement of Umidabee as per her version and he himself and P.W.4 Dr.Upendra Hublikar only were present at that time. He also stated that after recording the statement of Umidabee he obtained the thumb impression of Umidabee below her statement and Dr.Upendra Hublikar made endorsement thereon and he also signed on the said statement which is marked as Exh.56. He further stated that thereafter P.S.O. registered the offence and sent the said statement of Umidabee for further investigation to Chakur. 8 10. During cross-examination P.W.5 Shaikh Rafiq stated that the statement Exh.56 is in his handwriting. A suggestion was given to him that the said statement was recorded by him under the instructions of maternal relative or paternal relative of Umidabee but the same was denied by him. It was also suggested to him that Umidabee was not in a condition to speak when the said statement was recorded but same also was denied by him. 11. Considering the testimony of P.W.5 Police Head Constable Shaikh Rafiq, it is evident that there is no whisper in his deposition that he proved the contents of the said dying declaration (Exh.56) and his testimony is totally silent in respect of proof of contents of dying declaration (Exh.56). The net result of his testimony is that the contents of dying declaration (Exh.56) have not been proved by P.W.5 who testified himself before the Court, and, therefore, the said dying declaration is not admissible in evidence and cannot be accepted to base the conviction against the accused Nos.1 and 2 herein. 12. In the said context, learned Counsel for the appellants relied upon the judgment of Supreme Court in the case of “Deorao s/o Sonbaji Bhalerao & Anr. Vs. State of Maharashtra”, reported at 2008 ALL MR (Cri) 1921 wherein 9 it is held that dying declaration cannot be presumed to be correct unless proved according to law and no presumption is available in respect of such dying declaration under Section 80 of the Evidence Act. What is admissible in evidence is the statement made by dying man as to who was responsible for causing his death and not the paper on which dying declaration is recorded. Hence, the Magistrate or the person who records it will have to testify and prove who was named as offender by the dying person before the Court during the trial. The reliance also can be placed on the observations made in a judgment by the Division Bench of this Court wherein one of us (Hon’ble Shri Justice P.V.Hardas ) was a member, in the case of “Laxmibai w/o Maruti Satpute & Ors. Vs. State of Maharashtra”, reported at 2010 ALL MR (Cri) 182, that dying declaration recorded before Naib Tahsildar but none of the witnesses for dying delcaration stated that how the incident had occurred as per narration of the deceased, hence so called dying declaration cannot be said to be proved as required by law. 13. Accordingly, P.W.5 Police Head Constable Shaikh Rafiq also nowhere stated in his deposition the very version of the victim Umidabee and it has nowhere come in his evidence that how Umidabee sustained the injuries and who was the offender and hence since P.W.5 Shaikh Rafiq has not testified in that respect, 10 the dying declaration (Exh.56) cannot be construed as incriminating evidence against the accused Nos.1 and 2 to connect them with the alleged crime. 14. The learned Assistant Public Prosecutor argued that the accused No.2 was absconding for the substantial period i.e. for about more than six months and, therefore, the said conduct of the accused No.2 itself reflects his guilt. 15. In the said context, the learned Counsel for the appellants relied upon the observations made by the Supreme Court in the case of “Rehman Vs. The State of U.P., reported at AIR 1972 SUPREME COURT 110, wherein it is observed that : “ It is true that the appellant was concealing himself for nearly a month though he must have known that he was wanted by the Police and that he left his wife to face the situation alone. But absconding by itself is not conclusive either of guilt or of a guilty conscience. For, a person may abscond on account of fear of being involved in the offence or for any other allied reason.” Hence, in the light of the aforesaid observations made by Hon’ble Supreme Court since the possibility of abscondance of accused No.2 on account of fear or any other allied reason cannot 11 be ruled out and, therefore, we cannot jump to the conclusion that abscondance of accused No.2 for the substantial period involves him in the alleged crime. Accordingly, having the comprehensive view of the matter we are of the considered opinion that the accused Nos.1 and 2 are entitled for the benefit of doubt and, therefore, the conviction and sentence inflicted upon them by judgment and order passed by the Additional Sessions Judge, Ahmedpur in Sessions Case No.18/2006 on 24.7.2009 is unsustainable and same deserves to be quashed and set aside. 16. In the result, Criminal Appeal is allowed. The conviction and sentence of original accused Nos.1 and 2 recorded by the Additional Sessions Judge, Ahmedpur, in Sessions Case No. 18/2006, on 24.7.2009 is hereby quashed and set aside and the appellants/accused Nos.1 and 2 are acquitted of the offences with which they were charged and convicted and they be set at liberty forthwith, if not required in any other case The fine amount if paid by original accused Nos. 1 and 2 be refunded to them. ( SHRIHARI P.DAVARE ) ( P.V.HARDAS ) JUDGE JUDGE (vvr/criapeal567.09) 12