drp {1} Cri. Appeal No.375/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.375 OF 2009 Hemraj s/o Ramsing Rathod APPELLANT Age-22 years, Occ-Labour R/o Kharde, Tq-Shindkheda, Dist-Dhule VERSUS The State of Maharashtra RESPONDENT ....... Mr.A.B.Girase, Advocate for the appellant Mr.D.V.Tele, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 20th January 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. The appellant has questioned the correctness and legality of his conviction u/s 302 of the Indian Penal Code and sentence of imprisonment for life and to pay a fine of Rs.2000/-, in default to suffer Simple Imprisonment for two months, by Additional Sessions Judge, Dhule in Sessions Case No.18/2009 vide judgment and order dated 28.07.2009. 2. Such of the facts, as are necessary for the decision of drp {2} Cri. Appeal No.375/2009 this appeal, may briefly be stated thus - a) Supdibai, wife of the appellant, was referred to Civil Hospital Dhule, on 15.01.2008 from Cottage Hospital Dondaicha as she had sustained burn injuries. Police Constable Ravindra Wadile (PW-5), on the directions of PSO Dhule City Police Station, had recorded the statement of Supdibai (Exhibit-25) at Burn Patients Ward, Civil Hospital Dhule, after she was examined by Dr.Prashant Shinde (PW-7). On the basis of the said statement, an offence u/s 307 and 498A was registered against the appellant with Dondaicha police station at Crime No.116/2008. b) Investigation of the said offence was entrusted to PW-8 Karbhari Khairnar, who visited the spot of the incident, which was shown by Ravindra Rathod and on the same day Spot Panchanama (Exhibit-23) was drawn. Burnt pieces of sari, blouse, match box, bangles and Kerosene Can was seized from the spot. On 15.11.2008 one more statement of Supdibai was recorded at Exhibit-32, by J.R.Padvi, who claims that he was empowered with the powers of Executive Magistrate. The appellant was put under arrest on 16.11.2008 under arrest Panchanama Exhibit-13. c) On 16.11.2008, while under treatment, Supdibai succumbed to the injuries at 1.35 a.m. and, therefore, the drp {3} Cri. Appeal No.375/2009 offence came to be converted u/s 302 of the Indian Penal Code. After drawing the inquest Panchanama (Exhibit-14), the dead body was sent for Postmortem, d) Dr.Ramesh Gadhari, (PW-1) conducted the Postmortem on the dead body. Dr.Gadhari, on external examination of the dead body, noticed superficial deep thermal burn over body to the extent of 65%. Thumbs of both the hands of the victim were burnt and all the injuries were antimortem. The Medical Officer opined that the cause of death was shock following thermal burns and the age of the injuries was 24 hours. Accordingly, PM report (Exhibit-11) was prepared. e) During the further investigation, PW-8 Karbhari Khairnar, recorded statements of certain witnesses and the seized property was forwarded to the Chemical Analyzer along with covering letter. On receipt of the CA report and after completion of the investigation, charge sheet was submitted against the appellant before JMFC, Dondaicha, who committed the trial to the Court of Sessions, Dhule. f) Additional Sessions Judge, Dhule framed Charge (Exhibit-4) against the appellant for an offence punishable u/s 302 and 498A of the Indian Penal Code. Appellant abjured his guilt and claimed to be tried. Prosecution, to substantiate the charges leveled against the appellant, has drp {4} Cri. Appeal No.375/2009 examined 8 witnesses including two medical offices – one who had conducted the Postmortem and another who had examined and certified that Supdibai was in fit condition when her dying declarations were recorded; father and sister of the deceased, Police Constable Wadile and Senior Clerk Padvi-who had recorded the dying declarations of Supdibai; one Pancha witness to the spot Panchanama and the Investigating Officer. g) The trial court disbelieved the evidence of PW-3 Sister of the deceased, however relied on the written dying declarations (Exhibit-25 and Exhibit-32) so also the oral dying declaration of Supdibai before her father PW-2 and other evidence. The trial court convicted the appellant for an offence punishable u/s 302 of the Indian Penal Code, however acquitted him from the offence punishable u/s 498A of the Indian Penal Code. The said judgment of conviction is under challenge in this criminal appeal. 3. Before we embark upon the rival submissions, it is necessary to advert to the evidence of material witnesses, examined before the trial court. 4. PW-2 Darasing Rathod, father of the deceased has stated that Supdibai had married with the appellant on 12.06.2008 and was treated well for about 15 days, however, drp {5} Cri. Appeal No.375/2009 thereafter the appellant started harassing her, under the influence of liquor, on suspicion about her character. He has also deposed that Supdibai used to complain about the said harassment to her parents during her visit to her maternal home, however after persuasion Supdibai was sent back to the house of the appellant. On 24.10.2008, on account of Deewali festival, Supdibai was brought to her parents house where she again complained about the harassment and ill-treatment at the hands of the appellant. After Deewali, the appellant taken Supdibai back to house, however this time PW-3 Anusaya had accompanied her. On 15.11.2008, at about 4.30 p.m. on receipt of message in respect of Supdibai receiving burn injuries and her admission in cottage hospital, Dondaicha, he, along with his brothers, Sarpancha and other relatives, rushed to Kharde, thereafter to Dondaicha and ultimately to Civil Hospital Dhule. In the Civil Hospital, Dhule he noticed that Supdibai had sustained burn injuries over her face, chaste and back. On inquiry, Supdibai had informed him that her husband, the appellant, under the influence of liquor, poured kerosene on her person and had set her ablaze, as he was suspecting her character. After Supdibai succumbed to the burn injuries, he gave intimation (Exhibit-12) to the police. In the cross examination, he has stated that some of his relatives stay at Kharde, however, no complaint of harassment of Supdibai by the appellant was ever made to them. He has admitted that Supdibai was uneducated and she could speak only Ahirani drp {6} Cri. Appeal No.375/2009 and Vanjari languages, which are different languages. He has admitted that Supdibai had informed about the harassment and ill-treatment by the appellant, to her mother, from whom he came to know about the same. He has admitted that inspite of knowing about the harassment and ill-treatment to Supdibai, he has visited to her matrimonial house only twice, once at the time of Deewali of 2008 and on second occasion to attend her funeral. When he reached in the Civil Hospital, Dhule, at about 7.30 p.m., medical treatment was being provided to Supdibai. Supdibai spoke with him in their language and he, his relatives and Sarpanch were present with Supdibai till her demise. He has admitted in unequivocal terms that he had requested the police to record her statement and also asked her to give statement to the police. He had a talk with Supdibai, before her statement was recorded by the police. He, along with 4/5 persons, was present with Supdibai, at the time when her statement was being recorded by the Police. Supdibai gave statement in Vanjari language, which was translated by Sarpanch in Marathi. Thumb impression of Supdibai was obtained on some papers in his presence. He has further admitted that no person, in civil uniform, has recorded statement of Supdibai in his presence. Supdibai has not stated in the statement before police as to who had extinguished the fire. He denied the suggestion that he is unable to answer as to whether Supdibai has stated in the statement before police that she had sustained burn injuries in kitchen. drp {7} Cri. Appeal No.375/2009 5. It is in the evidence of Ravindra Wadile (PW-5), Police Constable that, on 15.11.2008, he recorded statement of Supdibai (Exhibit-25) after medical officer certified that she was in a condition to give statement, between 7.20 and 7.45 p.m. The statement was read over to Supdibai, which she admitted to be true and correct and then her thumb impression was obtained on the said statement. Supdibai has stated that her husband (appellant) had doused her with kerosene and had set her ablaze. He has stated in the cross examination that the police constable as well as Executive Magistrate are deputed in the civil hospital for recording dying declarations. He also admitted that the Medical Officer, who certified condition of Supdibai before recording of her statement, has not checked her blood pressure nor had examined her tongue. The medical officer had only examined her pulse rate and had certified that she was in a condition to give statement. According to him father of Supdibai and Sarpancha were not present at the time of recording of her statement. He has admitted, in unambiguous terms, that he is not conversant with Vanjari language. He has denied that statement of Supdibai was recorded with the help of interpreter. 6. It is in the evidence of PW-6 Jayant Padvi, that he was serving as a Senior Clerk in Tahsil office at Dhule. On 15.11.2008, on receipt of requisition from Dhule City Police Station, he had recorded the statement (Exhibit-32) of Supdibai, after medical officer had certified that she was in a condition to give statement, drp {8} Cri. Appeal No.375/2009 between 7.55 and 8.10 p.m, which was read over to her and she had also admitted the same as true and correct and had put left thumb impression on the same. Supdibai had told him that on 15.11.2008 at about 4.00 a.m. her husband took out a quarrel with her and under the influence of liquor, poured kerosene on her person and had set her on fire. He has fairly admitted that his designation is senior clerk, however, he was empowered to act as Executive Magistrate, by the orders and powers delegated by the Tahsildar. However, he could not produce any authorization in that behalf. He has further admitted that Supdibai herself has stated that before he recorded the dying declaration (Exhibit-32), nobody had recorded her statement. He has stated that he understands Ahirani language and can translate into Marthi. He has further stated that to some extent he also understands Vanjari language. He has admitted that Supdibai was speaking in Ahirani and Vanjari language and she has stated that her husband has set her on fire at 4.00 a.m. He has stated that he has translated the statement in Marathi language. He has also admitted that he has recorded the statement of Supdibai in the langauge, which was not known to her. 7, We have heard learned counsel for the appellant and learned APP, in the background of the aforesaid evidence. Learned APP supported the impugned judgment and urged for dismissal of the appeal by confirming the conviction and sentence of the appellant. drp {9} Cri. Appeal No.375/2009 8. Learned counsel for the appellant has contended that perusal of both the dying declarations indicates that the first dying declaration at Exhibit-25 was recorded between 7.20 and 7.45 p.m. whereas the second dying declaration Exhibit-32 same was recorded between 7.55 and 8.10 p.m. It is urged that the medical papers, to indicate that at what time Supdibai was admitted in the hospital, are not produced in the evidence. Learned counsel for appellant also invited our attention to the endorsement on PM notes, which indicates that the date of admission of the patient is 15.11.2008 and the time is 8.35 p.m. Therefore, it is urged that from the timings mentioned on both the dying declarations it cannot be inferred that they were recorded at the time, noted on the same. It is further urged that on perusal of both the dying declarations it is clear that the same are recorded in Marathi when admittedly Supdibai was not able to speak or understand Marathi and hence it is contended that the dying declarations are recorded in the language, which was not known to the victim, moreover, no witness has been examined to state that both the dying declarations (Exhibit-25 and Exhibit-32) are recorded with the assistance of interpreter and therefore, it is contended that both the dying declarations (Exhibit-25 and Exhibit-32) be discarded. 9. Learned counsel for the appellant asserts that from the evidence of PW-6 it is clear that he is a senior clerk and not an Executive Magistrate and the Tahsildar cannot delegate powers of drp {10} Cri. Appeal No.375/2009 Executive Magistrate to him and hence he was not authorized to record the dying declaration in the capacity of Executive Magistrate. It is further urged that PW-6 has stated that he had ascertained from Supdibai herself that before the dying declaration (Exhibit-32) was recorded, she had not given any statement to anybody. The admissions given by PW-2, father of the deceased took away the creditability of the evidence given by these two witnesses. PW-2 has stated in clear terms that no person, in civil dress, has recorded the dying declaration of Supdibai. Apart from it, it was also brought to our notice that PW-2 has also admitted that before the dying declaration of Supdibai was recorded by the police, he and Sarpancha had told her as to what statement to be given and they were present with Supdibai, at the time of recording of her dying declaration by police constable and the said dying declaration was recorded with the assistance of the Sarpancha. In the premise, it is urged that none of the witness is believable and that too under the circumstances that the prosecution has not examined any witness, who had shifted Supdibai from her house first to Cottage Hospital, Dondaicha and from there to Civil Hospital, Dhule. Nor any case paper in respect of her admission in the Cottage Hospital, Dondaicha or Civil Hospital, Dhule, are produced on record and therefore, it is urged that benefit of doubt be given to the appellant and the appeal be allowed by acquitting the appellant. 10. Considering the rival submissions, it is clear that the drp {11} Cri. Appeal No.375/2009 dying declarations at Exhibit-25 and 32, recorded by PW-5 and PW-6, respectively, are not recorded in the language known to the deceased. Apart from it, it is also brought on record that PW-2 in unambiguous terms has stated that he insisted the police to record the statement of Supdibai and the statement was recorded in his presence as well as in the presence of Sarpanhca. Supdibai did know only Ahirani and Vanjari languages and admittedly both the dying declarations (Exhibit-25 and 32) are recorded in Marathi language that too in presence of father and relatives of Supdibai. So also PW-6 has stated in his evidence that when he recorded the statement of Supdibai, she had categorically stated that her statement was not recorded by police. This admission of PW-6 took away the authenticity of dying declaration at Exhibit-25. At the same time, from the admissions given by PW-2, it is clear that statement of Supdibai was not recorded by any person in civil dress, which also took away the authenticity of dying declaration Exhibit-32. Additionally, PW-6 was working as a senior clerk and not as a Tahsildar and, hence, he was not the Executive Magistrate in law and the Tahsildar could not have delegated his power to a senior clerk to act as an Executive Magistrate and, therefore, PW-6 could not have act as an Executive Magistrate. 11. The Division Bench of this Court, to which one of us, P.V.Hardas, J. was a member, in the matter of “Ganesh Pundalik Karankar V/s State of Maharashtra” 2005 ALL MR (Cri) 1001, has observed that if the statement of the victim is recorded in the drp {12} Cri. Appeal No.375/2009 language not known to the victim and assistance of interpreter is availed while recording the dying declaration, then it is necessary to examine the interpreter, to establish that the dying declaration of the victim was recorded as given by the victim. In absence of examination of the interpreter, whose services were availed while recording the dying declaration, the dying declaration is shrouded with suspicion and therefore, no importance can be given to such a dying declaration. 12. For the above discussion, we are of the view that the dying declaration of the victim was recorded in the language not known to her and the victim was not knowing any other language than Ahirani and Vanjari, which fact is admitted by the father (PW-2) of the victim and hence, both the dying declarations, recorded by PW-5 (Exhibit-25) and PW-6 (Exhibit-32) are not acceptable. Once the written dying declarations are discarded, then remained the oral dying declaration of the victim given before her father, PW-2. Considering the way and manner in which PW-2 has deposed before the trial court so also as no contemporaneous record is coming forth in respect of admission of Supdibai in the Cottage Hospital, Dondaicha or Civil Hospital, Dhule, it cannot be ascertained that whether Supdibai sustained the burns accidentally or otherwise. As the persons, who had shifted Supdibai to hospital are not examined so also no medical papers, in respect of admission of Supdibai in the hospital are brought on record, then it can safely be inferred that the prosecution has drp {13} Cri. Appeal No.375/2009 suppressed some material evidence. In the premise, it is not clear as to how the victim had sustained burn injuries and therefore, it cannot be inferred that the injuries were homicidal. Thus, it is clear that the evidence before the trial court is not free from doubt and, therefore, benefit of doubt goes in favour of the appellant. In the premise, the appeal deserves to be allowed and the conviction of the appellant requires to be quashed and set aside. 13. Criminal Appeal is allowed and the conviction of the appellant / accused is hereby quashed and set aside and the appellant is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant, be refunded to him. Since the appellant is in jail, he be released forthwith, if not wanted in any other case. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B10/criapel375-09