1 cr-appeal-509-02 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. APPEAL NO. 509 OF 2002 IN SESSIONS CASE NO. 84 OF 1999 Sunil Tulshiram Barde ] Age 27 years, r/o Kopare, ] Taluka: Kalwan, Dist. Nasik ]..Appellant [Ori. Accused} Vs. State of Maharashtra ] (To be served through the ] Public Prosecutor, High Court, Bombay) ]..Respondent .... Mr. Harshad Palwe Advocate for the appellant Mrs. M.H.Mhatre A.P.P. for Respondent-State. .... CORAM : P.V.HARDAS AND N.D.DESHPANDE, JJ. DATED : MARCH 09, 2011 ORAL JUDGMENT [PER P.V.HARDAS, J.]: 1 The appellant who stands convicted for an offence punishable under Section 342 of The Indian Penal Code and 302 of The Indian penal Code and sentenced to rigorous imprisonment for two months and to pay a fine of Rs.100/- with default stipulation of undergoing further rigorous 2 cr-appeal-509-02 imprisonment for 15 days in the event of non-payment of fine and imprisonment for life and to pay a fine of Rs. 1000/- with default stipulation of undergoing further rigorous imprisonment for six months in the event of non payment of fine, by the 2nd Additional Sessions Judge Nasik, dated 20.4.2002, in Sessions Case No. 84 of 1999, by this appeal questions the correctness of his conviction and sentence. 2 Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. P.W. 6 Madhukar Waghmare a Senior Clerk working in the office of the Tahsildar, was instructed by the Tahsildar on 17.2.1999 to record the dying declaration of lady named Vimalbai who had been admitted in the hospital with burns. The authorization at Exh. 21 came to be received by P.W. 6 Madhukar Waghmare on 17.2.1999 at 3.20 p.m. P.W. 6 Madhukar Waghmare accordingly proceeded to the Cottage Hospital at Kalwan and requested the Medical Officer present in the ward to ascertain if injured Vimalbai was in a fit condition to give her statement. Thereafter, he claims to have commenced the scribing of the dying declaration. Injured Vimalbai had disclosed that she was married to the appellant and had given birth to a daughter. She stated that the accused who was addicted to liquor, had snatched an amount of Rs. 20/- from her and thereafter had poured kerosene on her and had set her ablaze. She 3 cr-appeal-509-02 further stated that the appellant thereafter fled from his house and put a lock on the door of the house from outside. She states that the persons from the neighbourhood gathered there and attempted to save her. A blanket was wrapped around her and thereafter Police Patil carried her to the Cottage Hospital Kalwan. She further states that the accused was addicted to liquor and used to frequently assault her on account of consumption of liquor. He has proved the dying declaration which is recorded by him on 17.2.1999 in between 3.30 p.m. to 4.00 p.m. at Exh. 26. The endorsement of the Medical Officer is “patient is conscious, statement can be recorded, statement started at 3.30 p.m. and finished at 4.00 p.m. on 17.2.1999”. 3 On the basis of the said statement, P.W. 9 Sampat Jadhav a Head Constable attached to Kalwan Police Station, registered an offence and entrusted the investigation to P.W. 7 Sharad Gavhane. P.W. 7 A.P.I. Sharad Gavhane states that he proceeded to the scene of offence and in the presence of the panch witnesses drew the scene of offence panchnama at Exh. 10. From the scene of offence pieces of bangles, plastic can, match box, burnt clothes, a burnt currency note of Rs. 1 came to be seized. Thereafter injured Vimalbai succumbed to her injuries and accordingly the inquest panchnama came to be drawn at Exh. 11 in the presence of panchas. The accused came to be arrested on 17.2.1999. 4 cr-appeal-509-02 Dead body of the deceased Vimalbai was referred for post mortem examination. Post mortem on the dead body of deceased Vimalbai came to be conducted by the Medical Officer attached to the Cottage Hospital Kalwan. According to P.W. 8 Dr. Dilp Pagare, Vimalbai had sustained 94% superficial to deep burns. He has further opined that injuries were ante mortem. According to him, cause of death Hypovolumic shock due to 96% superficial to deep burns. The post mortem report is at Exh. 33. The appellant-accused while in police custody produced a lock and key which came to be seized. A Memorandum at Exh. 15 came to be recorded pursuant to which, the lock and key came to be produced by the accused from his house which came to be seized vide seizure memo at Exh. 16. The seized property was forwarded to the Chemical Analyzer for analysis along with requisition at Exh. 30. Further to the completion to the investigation, charge sheet against the appellant came to be submitted. 4 On committal of the case to the Court of Sessions, trial Court vide Exh. 7 framed charge against the appellant for offence punishable under Section 498-A, 342 and 302 of the I.P.C. The appellant denied his guilt and claimed to be tried. Prosecution in support of its case examined nine witnesses while the appellant in his defence examined three witnesses. The trial Court upon appreciation of the evidence of the 5 cr-appeal-509-02 prosecution acquitted the appellant for offence punishable under Section 498-A of the I.P.C. and convicted and sentenced him for offence punishable under Sections 342 and 302 of the I.P.C. 5 The entire prosecution case revolves around the evidence of the scribe who had recorded the dying declaration. The first dying declaration at Exh. 26 came to be recorded by P.W. 6 Madhukar Waghmare, Senior Clerk attached to the office of Tahilsdar. He states, vide Exh. 21 that he had been authorized by the Tahsildar to record the statement of injured Vimalbai. The aforesaid authorization was received by him at 3.20 p.m. and thereafter he proceeded to the hospital and recorded the dying declaration. He does not refer to the fact that the Medical Officer had examined Vimalbai and had certified that she was in a fit condition to give her statement. In any event, the endorsement of the Medical Officer on the dying declaration does not indicate that he had examined Vimalbai before the recording of the dying declaration. The endorsement of the Medical Officer reads as under: “patient is conscious, statement can be recorded, statement started at 3.30 p.m. and finished at 4.00 p.m. on 17.2.1999.” P.W. 6 Madhukar Waghmare in his evidence also does not state that he had reached the subjective satisfaction that injured Vimalbai was well oriented and was in a fit condition to give her statement. Any way apart from that the truthfulness of the dying 6 cr-appeal-509-02 declaration is required to be tested along with the evidence regarding the recording of the dying declaration. In the original dying declaration Exh. 26, it appears that P.W. 6 Madhukar Waghmare had applied a whitener and had corrected the time of the completion of the dying declaration to read as 4.00 p.m. In the copy which was obtained prior to the correction, the time which was stated was something different. P.W. 6 Madhukar Waghmare has not explained this circumstance in his examination in chief. According to us, the corrections if any have to be explained by the scribe as well as the necessity which arose for effecting the correction. In the present case, the evidence of P.W. 6 Madhukar Waghmare is completely silent. The dying declaration according to us, does not inspire confidence as there is absence of unimpeachable evidence in respect of the recording of the dying declaration. P.W. 6 Madhukar Waghmare does not explain as to how within 10 minutes he reached the hospital and commenced the recording of the dying declaration as he had received the authorization at Exh. 21 at 3.20 p.m. Prosecution has examined P.W. 2 Suman mother of deceased Vimalbai. P.W.2 Suman does not state that the deceased at any point of time had complained to her that the appellant was illtreating deceased Vimalbai on account of the demand of money for consumption of liquor. In fact, as to whether the accused was addicted to liquor or not has not been established apart from a stray admission given by P.W.2 Suman. 7 cr-appeal-509-02 Prosecution has examined P.W. 4 Bhila Aher the Police Patil from whom certain information could have been solicited. Prosecution has utterly failed to elicit the necessary and requisite information about the addition of the accused to liquor. 6 Prosecution has examined P.W.5 Karbhari Deore Police Officer who had recorded the dying declaration of Vimalbai at Exh. 22. This witness in his evidence has not proved the contents of the dying declaration. The Division Bench of this Court in `Jeevan and another Vs. State of Maharashtra' All M.R. (Cri.) 2018 and `Laxmibai Vs. State of Maharashtra' 2010 of All M.R. (Cri.) 182 has held that it was incumbent on the scribe to prove the contents of the dying declaration and unless and until the contents of the dying declaration were proved the dying declaration could not be read in evidence. In the present case, the contents of the dying declaration have not been proved and consequently, the dying declaration at Exh. 22 cannot be read in evidence. 7 Accused has examined D.W.1 Kevalbai Barde, D.W. 2 Kautik Khairnar and D.W.3 Baijabai Barde. What D.W.1 Kevalbai, sister of accused and D.W. 2 Kautik a neighbour state that deceased had disclosed to them that she had sustained injuries on account of sudden flaring of the stove. Prosecution has cross-examined these witnesses but 8 cr-appeal-509-02 nothing of importance has been elicited in the cross-examination. At the close of the cross-examination, both these witnesses have emerged unscathed. We therefore find that in the absence of any material to indicate that these witnesses are not telling truth, the trial Court erred in disbelieving the evidence of these witnesses. Learned Counsel for the appellant has placed reliance on the judgment of the Supreme Court in `Dudh Nath Pandey Vs. State of Uttar Pradesh' A.I.R. 1981 S.C. 911 in which the Supreme Court at para 19 has held that the defence witnesses are entitled to equal treatment with those of the prosecution and Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses. In the present case, we find that there is nothing in the cross-examination which would in any manner lead to an inference that the defence witnesses are not speaking truth. There has been virtually no cross- examination of these defence witnesses. However, since we find that the dying declaration at Exh. 26 cannot be relied upon and the dying declaration at Exh. 22 also cannot be relied upon, the question as to whether the accused has probablized his defence, would not be a question which would remain for this Court to answer. 8 The learned Public Prosecutor has urged before us that the report of the Chemical Analyzer shows the presence of kerosene on the 9 cr-appeal-509-02 clothes of the appellant-accused. The appellant-accused has offered an explanation that since he had attempted to save his wife and extinguished the fire, his clothes may have come in contact with the clothes of the deceased which were stained with kerosene. The prosecution has not proved the factum of seizure of the clothes and has also not proved that the clothes on its seizure were kept in sealed condition in the police station. That by itself therefore according to us, would not establish the offence against the appellant beyond reasonable doubt. 9 In cases of resting on circumstantial evidence, prosecution has to prove each and every circumstance on which the prosecution intends to rely upon. The circumstances so proved should be of a conclusive nature i.e. they should have a tendency to incriminate the accused. The circumstances then should form a complete chain which would exclude every possible hypothesis of the innocence of the accused and should unerringly point to the guilt of the accused. In the other words, the circumstances must indicate that it is the accused and the accused alone who has committed the offence. A reference in this behalf may usefully be made to the judgment of the Supreme Court in `Sharad Birdhichand Sarda Vs. State of Maharashtra' A.I.R. 1984 S.C. 1622. In the present case, the prosecution has utterly failed to prove the offence against the appellant beyond reasonable doubt. The appellant therefore, in our 10 cr-appeal-509-02 considered opinion, would be entitled to be acquitted. 10 Accordingly Criminal Appeal No. 509 of 2002 is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offences 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. [N.D.DESHPANDE, J.] [ P.V.HARDAS, J. ]