{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.714 OF 2008 Santosh Dattatraya Tak Age-30 years, Occ-Business R/o Sainagar, Chand Colony, Nanded, Tq & Dist-Nanded APPELLANT VERSUS The State of Maharashtra RESPONDENT ....... Mr. A.D.Rajput h/f Mr.V.R.Dhorde, Advocate for appellant Mr. D.R.Kale, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 8th September 2010 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. The appellant, who is convicted for an offence punishable u/s 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs.500/-, in default to suffer RI for 10 days, in Sessions Case No.21/2006 by the Sessions Judge-1 Gangakhed, vide judgment and order dated 07.10.2008, has questioned the legality of the said judgment by preferring the present criminal appeal. {2} 2. Such of the facts, as are necessary to decide the appeal, may briefly be stated thus - a) Deceased Rupali got married with one Ravindra Prakash Udanshiv (Accused No.4) on 05.12.2005 at Nanded. After their marriage, the spouses were residing separately from other family members, at Parali Naka, Gangakhed. On 15.04.2006, at the request of Rupali, Ramesh-her father (PW-1) and Rajeshree-her mother (PW-3) visited the matrimonial house of Rupali, as she had complained about ill-treatment to her by her husband as well about illicit relations of her husband with one Banu (Accused No. 9). On 16.04.2006, when the parents of Rupali were to leave for Jintur, the appellant-brother in law of her husband and Ravindra- her husband, requested them to have a lunch and thereafter to proceed to Jintur. As Rupali had suspected some foul play, she signaled her parents not to have the lunch. Thereafter, at the request of Rupali, her brother-Shubham (PW-12) was called to stay with Rupali. Thereafter, her parents proceeded to Jintur, without taking lunch and Shubham stayed with Rupali. b) On 17.04.2006, Rupali sustained burn injuries in her matrimonial house. It is alleged that due to the incident dated 16.04.2006 of her parents refusing to have lunch, the appellant, who is brother in law of her husband, had took out a quarrel with her and in a fit of anger poured kerosene on her person and set her ablaze. Her husband tried to extinguish the fire, however she {3} sustained burn injuries. She was brought to Rural Hospital, Gangakhed from where, as per medical advice, she was shifted to Civil Hospital, Parbhani at about 12.20 p.m. Thereafter, MLC No. 1552/2006 was registered after her admission at Civil Hospital, Parbhani. c) PW-9 Bapu Lad, PSO Nanalpeth police station, took entry of the MLC in the Station Diary at 12.40 p.m. Thereafter AD was recorded and investigation was taken over by ASI Bashir. Requisition letter was sent to Tahsildar to make arrangement to record statement of Rupali. Mr.Sopan Deorao Babad, Naib Tahsildar (PW-5), recorded dying declaration (Exhibit-95) of Rupali. d) On the basis of the dying declaration (Exhibit-95), an offence at Crime No.52/2006 was registered, initially for an offence punishable u/s 307 of the Indian Penal Code. Investigation of the crime was carried out by PSI Dilip Dharmaraji Kamble (PW-13). During the investigation, he visited the spot of the incident and prepared Spot Panchanama (Exhibit-99) and seized certain articles. On 19.04.2006 and 20.04.2006, he recorded statements of certain witnesses. On 21.04.2006, Rupali succumbed to the burn injuries. Accordingly, Gangakhed police station was informed and hence the crime registered for an offence punishable u/s 307 of the Indian Penal Code, was converted into an offence punishable u/s 302 of the Indian Penal Code. Inquest Panchanama was drawn on the body of Rupali and the body was sent for Postmortem. On {4} 22.04.2006, the appellant came to be arrested. At the time of his arrest, clothes on his person were seized under seizure Panchanama (Exhibit-126). During the investigation seized articles were sent to CA. After receipt of the report of CA and after completion of the investigation, charge sheet against the appellant was filed before JMFC, Gangakhed on 20.07.20206. e) After the charge sheet was filed against the appellant, it appears that the father of the deceased submitted a representation on 30.08.2006 in Gangakhed police station requesting to conduct further investigation. Thereafter, statements of the relatives of deceased Rupali, including her father, mother and brother, were recorded. Thereafter, section 498-A r/w 34 of the Indian Penal Code came to be added in Crime No.52/2006 and original accused No.2 to 9 were arrayed as accused in the said offence and came to be arrested on 31.12.2006. Thereafter supplementary charge sheet was filed against the newly added accused. f) After passing of the necessary committal order, trial against the appellant and other accused was committed to the Court of Sessions. On 08.06.2007, charge was framed against the appellant and others by the learned Additional Sessions Judge, Gangakhed for an offence punishable u/s 302 r/w 34 and 498-A r/w 34 of the Indian Penal Code. All the accused pleaded not guilty to the charge and claimed to be tried. Defense of the appellant and {5} others was of total denial and that they are falsely implicated in the said offence. g) During the trial, to substantiate the charge leveled against the accused, the prosecution examined total 14 witnesses, including the alleged eye witness i.e. Shubham (PW-12), brother of deceased Rupali, Ramesh (PW-1) father of deceased, Rajshree (PW-3) mother of deceased, husband of the maternal aunt of deceased, who was the mediator to settle the marriage of Rupali and Ravindra (PW-2), Sopan Deorao Babad (PW-5) Naib Tahsildar, who had recorded the dying declaration of Rupali (Exhibit-95), Dr.Sanjay Khillare (PW-8), who had initially examined deceased at Parbhani and had also certified on 17.04.2006 that Rupali was in a fit condition to give statement, Dr.Pratap Ghodke (PW-7), who conducted autopsy on the dead body of Rupali and prepared Postmortem notes (Exhibit-101), Bapu Lad (PW-9) who had registered the AD on the basis of MLC (Exhibit-108) and Dilip Kamble (PW-13) the investigating Officer. h) Considering the evidence on record, the trial court discarded the evidence of eye witness Shubham (PW-12) so also the evidence of PW-1 and PW-3 on the point of cruelty and illegal demand by the accused and acquitted accused No.3 to 9 of all the charges for the offence punishable u/s 302 r/w 34 and 498A r/w 34 of the Indian Penal Code (accused No.2 Prakash expired during the pendency of the trial). However convicted the appellant for the {6} offence punishable u/s 302 of the Indian Penal Code. 3. Admittedly, the State has not challenged the acquittal of accused No.3 to 9. 4. We have heard learned counsel for the appellant followed by learned APP for the State. We have also perused the impugned judgment and order so also the Record and Proceedings of the case. 5. In the light of the rival submissions it is clear that it is not disputed that Rupali expired due to burn injuries sustained by her. In this view of the matter, we do not think it necessary to re- appreciate the evidence of Dr.Pratap Ghodke who has conducted the autopsy on the dead body and had prepared the Postmortem notes (Exhibit-101). 6. Evidence of eye witness Shubham (PW-12), brother of Rupali, is discarded by the trial court in toto. In his examination in chief though he states particulars as to how Rupali sustained burn injuries, yet in his cross-examination he has admitted that he woke up from sleep after hearing shouts of Rupali. He has also admitted in the cross examination that what he has deposed in the examination in chief, he has not stated in his statement recorded by the police during the investigation. In substance, narration of the incident given by him before the Court is an improvement. In the premise, we also do not feel it necessary to discuss the {7} evidence of PW-12 Shubham. 7. Rest of the case of the prosecution rests on the oral dying declaration of Rupali to her parents i.e. PW-1 Ramesh and PW-3 Rajeshree and the dying declaration (Exhibit-95) recorded by PW-5, Sopan Babad, Naib Tahsildar. To some extent, it is necessary to consider the evidence of PW-8 Dr.Sanjay Khillare, who had examined Rupali before her dying declaration was recorded and had certified about her condition to give statement. 8. It transpired from the evidence of PW-1 Ramesh that Rupali got married with Ravindra on 05.12.2005, the present appellant is brother in law of the husband of the deceased and some time after marriage of Rupali, he came to know that Ravindra had illicit relations with Banu. About the incident he has deposed that on 15.04.2006 deceased had called him and his wife to Gangakhed and accordingly they had been to Gangakhed and at that time he paid Rs.10,000/- to Ravindra to purchase colour TV, on 16.04.2006 when they were about to leave, the appellant and husband of Rupali requested them to have a lunch to which initially they agreed, however when Rupali smell something foul and when she signaled them not to have lunch, they refused and left without taking lunch. He has also deposed that at that time Rupali had requested to call Shubham to reside with her. On the next day, they received a message that Rupali had sustained burn injuries and she was admitted in Civil Hospital, Parbhani. Hence, {8} they went to the civil hospital, Parbhani and noticed that PW-5 Sopan Babad, Naib Tahsildar, had came to the hospital to record statement of Rupali and after her statement was recorded by the Naib Tahsildar, they inquired as to how she sustained burn injuries and it was informed that after they left her house without taking lunch the appellant took quarrel with her and in a fit of anger he poured kerosene on her person and set her on fire and hence she received burn injuries on her back. She has also informed that at that time her husband-Ravindra had caught hold her from front side and had forced her to lie down on the ground and thereafter the remaining accused again poured kerosene on her person and ablaze her and at that time her mouth was gaged with a piece of cloth. PW-1 Ramesh in his cross examination has admitted that what he has deposed before the Court he has not disclosed to the police while his statement was being recorded during the investigation. 9. In the evidence of PW-3 Rajeshree, mother of the deceased, she has reproduced the evidence given by her husband PW-1, which is in consonance and in corroboration of the evidence given by PW-1. 10. It transpired from the evidence of PW-8 Dr.Sanjay Khillare that on 17.04.2006, he was attached to Civil Hospital, {9} Parbhani and was on duty in burn ward. He has stated that after Rupali was admitted in the hospital by her husband Ravindra, as referred by Rural Hospital, Gangakhed, he had examined her and had prepared her case papers. On that day at about 2.00 p.m. PW-5 Sopan Babad, Naib Tahsildar, had came to the Hospital to record the statement of Rupali and hence he had examined Rupali at about 2.00 p.m. and had certified that she was conscious and in a fit condition to give statement and had put endorsement to that effect on the paper on which the dying declaration was to be recorded. It took about 40 minutes to record her dying declaration and thereafter also he had examined Rupali and had certified that Rupali was in a fit condition when her dying declaration was recorded. He identified his certificate on Exhibit-95. Evidentiary value of the version of this witness is only to the effect that he had examined Rupali before and after her dying declaration was recorded by PW-5 Naib Tahsildar. In his cross examination, case papers of Rupali (Exhibit-106) were referred to him wherein he had noted the history of accidental burns as given at the time of admission of Rupali in Civil Hospital. He has also admitted that on that day Ravindra-husband of Rupali was also examined. 11. The next material witness on the point of dying declaration is PW-5 Sopan Babad. It transpired from his evidence that on 17.04.2006, he had reached in the Civil Hospital at about {10} 2.00 and at about 2.05 p.m. PW-8 Dr.Khillare examined Rupali and certified that she was in a fit condition to give statement. Thereafter, he put certain formal questions and get himself satisfied that Rupali was in a fit condition to give statement. Thereafter he recorded statement of Rupali in question answer form, as given by her. It required about 40 minutes to record the statement of Rupali. After recording of the dying declaration was over, contents therein were read over to Rupali, which she had admitted to be true and correct and had put her thumb impression. After recording of the dying declaration was over, again she was examined by PW-8 Dr.Khillare and certified accordingly. He identified Exhibit-95 as well as the endorsement made by Dr.Khillare. 12. Learned counsel for the appellant urged that the alleged oral dying declaration given by deceased Rupali to her parents is not in consonance with her dying declaration (Exhibit-95) recorded by PW-5. Therefore, it is requested to discard the alleged oral dying declaration. It is also urged that the oral dying declaration, allegedly given by Rupali to PW-1 and PW-3, is omission in their statement recorded by the police and hence the same may not be accepted. It is further urged that the contents of dying declaration (Exhibit-95) recorded by PW-5, are not proved in the evidence of PW-5, as required in law and hence the dying declaration (Exhibit-95) also to be discarded. If both, the alleged oral dying declaration and the dying declaration (Exhibit-95) are {11} discarded then there is no evidence to link the appellant with the said offence and hence it is prayed to allow the appeal and acquit the appellant. 13. Learned APP supported the impugned judgment for the reasons recorded therein. According to learned APP, though the oral dying declaration is not in consonance with the dying declaration at Exhibit-95, yet the act of the appellant required to be considered as the act of the appellant has resulted into death of Rupali. 14. The Division Bench of this Court, in the matter of “Deorao s/o Sonbaji Bhalerao & Another V/s State of Maharashtra” reported in 2008 ALL MR (Cri) 1921 has observed that what is admissible in evidence is the statement made by the injured to the scribe and the contents of the dying declaration written by the scribe have to be proved and the scribe has to depose as to what was told to him by the injured. In absence of such evidence, the written dying declaration dehorse the contents being proved, could not be read in evidence. Similar view is taken by the Division Bench of this Court in the matter of “Jivan Tulsiram Dhavali & Anr V/s State of Maharashtra” reported in 2008 ALL MR (Cri) 2018. Our attention is also invited to the ratio laid down by the Division Bench of this Court in the case of “Laxmibai w/o Maruti Satpute V/s State of Maharashtra” 2010 {12} ALL MR (Cri) 182, to which one of us (P.V.Hardas, J.) was a member. In Laxmibai’s case, the Division Bench relied on the earlier two judgments of the Division Bench and also held that in absence of proof of contents of written dying declaration, the said dying declaration could not be held to have been proved. It is also held by the Division Bench of this Court in case of “Faizal Mohammed s/o Abdulla Banaim V/s State of Maharashtra” reported in 2010 ALL MR (Cri) 2241 to which one of us (P.V.Hardas, J.) was a member, that if the conviction is based on the dying declaration and the contents of which are not proved, then the conviction cannot sustain. 15. On re-appreciation of the evidence of PW-5 Sopan Babad, who has recorded the dying declaration (Exhibit-95) it appears that in his entire evidence, he has not uttered a single word which was disclosed to him by deceased Rupali when her dying declaration was recorded. In other words, in his substantive evidence before the Court, PW-5 Naib Tahsildar Sopan Babad has not deposed about the contents of the dying declaration of deceased Rupali and, therefore, the contents of dying declaration are not proved at all. Likewise, the oral dying declaration, as deposed by PW-1 and PW-3, for the reasons discussed above, also cannot be accepted. Once we have concluded that neither the oral nor the written dying declaration (Exhibit-95) can be read in evidence, on which the conviction is based, then there is no evidence against the appellant to link him with the cause of death {13} of Rupali. In view of the above discussion, the appeal ought to succeed. 16. The appeal is allowed and conviction of the appellant for offence punishable u/s 302 of the Indian Penal Code and sentence of imprisonment for life and fine of Rs.500/-, in default imprisonment for 10 days, 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/criapel714-08