cr. apeal 729-04.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. APPEAL NO. 729 OF 2004 Tanaji Khandu Jadhav, ] Age : 19 Years, Occupation : Labour, ] Residing at & Post - Lavang, ] Taluka - Malshiras, District - Solapur. ] (At present detained in District Prison, Dhule) ] Appellant (Org Accused 1) Versus The State of Maharashtra, ] (Through Officer-in-charge, Akluj Police ] Station, Dist. Solapur.) ] Respondent Mr. D.G. Khamkar for the Appellant Ms. S.V. Gajare, APP for the State CORAM : P.V. HARDAS & M.N. GILANI, JJ. DATE : 5th MAY, 2011. ORAL JUDGMENT (Per P.V. Hardas, J): 1. The appellant who stands convicted for an offence punishable under Section 302 of the IPC and sentenced to imprisonment for life and to pay fine of Rs. 1000/-, in default of which to undergo SI for three months, by the IIIrd Additional Sessions Judge, Pandharpur, by judgment dated 23rd January 2004, by 1 cr. apeal 729-04.doc 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:- i. PW 6 ASI Paradhi who was attached to Akluj Police Station and was on duty on 17th May 2002, was directed by the PSO to record a statement of injured Durgabai who had been admitted in Rural Hospital at Akluj. PW 6 ASI Paradhi accordingly proceeded to the hospital and obtained opinion of Medical Officer regarding ability of Durgabai to give her statement. On the Medical Officer expressing that Durgabai was in a fit condition to give her statement, he recorded the statement of injured Durgabai at Exh 18. Durgabai in her statement at Exh 18 stated that on the date of the incident, the appellant who was known to her came to her house and inquired whether the brother of Durgabai had gone and that he would see him. So saying, the appellant picked up a can of kerosene and threw the kerosene on the person of Durgabai and set her ablaze. Durgabai further stated that other villagers and her relatives took her to the hospital for treatment. The said statement came to be recorded at 00.45 a.m. On the basis of the said statement, offence vide Crime No. 33/02 came to be registered against the appellant for offence punishable under Section 307 of the 2 cr. apeal 729-04.doc IPC. PW 9 Chandrakant, head-constable who was attached to S.B. Police Station, Solapur was called by CMO of the Civil Hospital at Solapur on 18th May 2002 at 3.45 a.m. and informed about admission of Durgabai in the Civil Hospital. Accordingly, PW 9 ASI Chandrakant Wadikar along with PW 7 Medical Officer went to the bed of Durgabai. The Medical Officer ascertained if Durgabai was in a fit condition to give her statement and accordingly, recorded the statement of Durgabai at Exh 22. Durgabai, in her statement at Exh 22 stated that on the date of the incident i.e on 17th May 2002, she had taken her dinner along with her parents at about 07.00 in the evening and thereafter had retired to bed. At about 9 O’clock, she went to answer call of nature and while she was outside her house, the appellant and others caught her and poured kerosene on her and set her ablaze. It appears that another dying declaration of Durgabai came to be recorded by PW 5 Nandkumar Khurd, an Executive Magistrate. He was informed by a communication at Exh. 15 on 20th May 2002 about admission of Durgabai in Civil Hospital and accordingly contacted the Medical Officer and requested him to opine if Durgabai was in a fit condition to give her statement and thereafter recorded the statement of Durgabai at Exh. 16. In the dying declaration at Exh 16, Durgabai had stated that on the date of the incident, she had gone to answer call of nature at about 09.00 p.m. and 3 cr. apeal 729-04.doc the appellant and one accused Dhanaji accompanied by two other unknown persons had come there and had abused her. Thereafter all the accused poured kerosene on her and set her ablaze. She states that the neighbors had extinguished flames by rapping her with a quilt. Thereafter, she was brought to Rural Hospital for treatment. ii. PW 12 API Ramesh Galande who was attached to Akluj Police Station was entrusted with investigation of Crime No. 33/02 under Section 307 of the IPC. On the next day i.e on 18th May 2002, he proceeded to the scene of the offence and drew the scene of the offence panchanama at Exh 13. He thereafter recorded statements of PW 2 Sadashiv and others. On the same day, he arrested the appellant. Injured Durgabai succumbed to her injury on 29th May 2002 and accordingly, Sadar Bazar Police Station drew the inquest panchanama which was forwarded to PW 12 API Galande. The other accused namely accused nos. 2 and 3 came to be arrested on 27th July 2002. Further to the completion of investigation, charge sheet came to be filed against the accused. iii. Postmortem on the dead body of deceased Durgabai was performed by PW 11 Dr. Padmakar Patil. He noticed that Durgabai had sustained 62% burns. He, therefore, opined 4 cr. apeal 729-04.doc that the burn injuries were ante mortem and according to him, the cause of death was septicemia shock due to infected 62% burn injuries. The postmortem report is at Exh 31. The advance certificate in respect of the cause of death is at Exh 32. iv. Prosecution in respect of its case examined 12 witnesses while the accused in his defence examined DW 1 Jyotiram. The trial Court accepted evidence of the prosecution and convicted and sentenced the appellant as afore stated while convicting the other accused. 3. In order to appreciate the submissions advanced before us by Shri. D.G. Khamkar, the learned counsel for the appellant and the learned APP for the respondent, it would be useful to refer to the evidence of the prosecution witnesses. PW 2 Sadashiv, who claims to be an eye witness to the incident states that his house is situated opposite the house of accused nos. 1 and 3. He states that prior to the incident, there was a quarrel between him, his sons and the accused. Durgabai had come to his house about 5-6 days prior to the incident. On the date of the incident, Durgabai was present in his house while remaining family members had gone to Civil Hospital where his son Sitaram was admitted. The appellant came to his house followed by accused nos. 2 and 3. There was exchange of hot 5 cr. apeal 729-04.doc words between the appellant and Durgabai and the appellant, thereafter had taken a tin of kerosene from his house and poured the kerosene on Durgabai and set her ablaze. Accused no. 2 had pushed PW 2 Sadashiv aside and accused no. 2 had also attempted to push Durgabai inside the house and in that process, accused no. 2 sustained burn injuries on his hand. Durgabai had rushed out of the house and thereafter, the accused fled away. The neighbors had taken Durgabai to the Civil Hospital. The principal contention of the learned counsel for the appellant is that evidence of the eye witness is in sharp contradiction to the recitals in the dying declarations. It is further urged before us that there is discrepancy in respect of three dying declarations and as a result, none of the dying declarations can be relied upon. The learned counsel for the appellant has further urged before us that in the face of inconsistency between the dying declarations inter se and the evidence of PW 2 Sadashiv, the appellant is entitled to be given the benefit of doubt. 4. We have already adverted to the recitals of the three dying declarations namely Exh 18 recorded by PW6 Raosaheb, Exh 22 recorded by PW 9 Chandrakant and Exh 16 recorded by PW 5 Nandkumar. Undisputedly, there is variance in the three dying declarations. In cases resting on multiple dying declarations, consistency is expected in respect of the incident, 6 cr. apeal 729-04.doc the prelude to the incident, number of the accused and manner of committing the incident. Recitals in the three dying declarations are inconsistent and acceptance of any one dying declaration necessarily entails rejection of the other. The evidence of PW 2 Sadashiv who claims to be an eye witness is completely contradictory to the recitals of the dying declarations. In the face of such contradictory evidence, according to us, the appellant would be entitled to be given benefit of doubt as no reliance can be placed on any of the dying declarations or on the evidence of PW 2 Sadashiv. 5. Resultantly, this Criminal Appeal is allowed and conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offence with which he was charged and convicted. 6. Fine, if paid by the appellant, be refunded to him. 7. Since the appellant is in jail, he be released forthwith, if not wanted in any other case. [ M.N. GILANI, J ] [ P.V. HARDAS, J ] 7 cr. apeal 729-04.doc 8