{1} Cri. Appeal No.330/2010 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.330 OF 2010 1. Bhaskar Lotan Wagh APPELLANTS Age-29 years, Occ-Agriculture 2. Sakhubai Lotan Wagh, Age-60 years, Occ-Housewife 3. Raju Lotan Wagh, Age-19 years, Occ-Agriculture All R/o Hatti-Khurd, Tq-Sakri, Dist-Dhule VERSUS The State of Maharashtra RESPONDENT Through Police Inspector, Nizampur Police Station, Tq-Sakri, Dist-Dhule ....... Mr.Shirish Gupte, Sr. Counsel with Mr.B.R.Warma, for appellants Mr.S.D.Kaldate, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 14 th July 2011 {2} Cri. Appeal No.330/2010 ORAL JUDGMENT (PER P.V.HARDAS, J.): 1. The appellants, who stand convicted for an offence punishable u/s 302, 504 and 506 r/w 34 of the Indian Penal Code and cumulatively sentenced to imprisonment for life and fine of Rs. 2000/- each, in default of which to undergo Simple Imprisonment for 6 months, by the Additional Sessions Judge-1, Dhule, by judgment dated 25.08.2010, in Sessions Case No.154/2009, by this appeal question the correctness of their conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal, may briefly be stated thus- PW-4 Pandit Khairnar, Police Head Constable attached to Dhule City Police station, was directed by the PSO to proceed to the Civil Hospital and record statement of injured Ujjwalabai, who had been admitted with burns. He accordingly reached the hospital at about 10.00 am on 04.07.2009 and contacted Medical Officer on duty i.e. PW-3 Dr.Prashant Shinde and requested him to ascertain the condition of the injured to give statement. The Medical Officer examined the injured and opined that she was in a fit condition to give her statement and accordingly the statement of Ujjwalabai came to be recorded by Police Head Constable, PW-4 Pandit at Exhibit-38. Ujjwalabai, in her statement, had stated that on the day of the incident i.e. on 04.07.2009, at about 4 in the morning, her brother in law, Bhaskar, had poured petrol on her {3} Cri. Appeal No.330/2010 and he was exhorted to do so by the other accused and accordingly, accused Bhaskar set her ablaze. Prior to this, it appears that PW-2 Ramesh Gulale, Naib Tahsildar and an Executive Magistrate was served with a memo requesting him to record the statement of Ujjwalabai, who had been admitted in the Civil Hospital, Dhule with burns. He accordingly contacted PW-3 Dr.Shinde and requested him to ascertain the condition of injured Ujjwalabai and upon Medical Officer certifying that Ujjwalabai was in a fit condition to give her statement, recorded her statement at Exhibit-34. In the said dying declaration, at Exhibit-34, injured Ujjwala had stated that on the day of the incident, at about 4 in the morning, all the three accused had poured petrol on her and all the three accused had set her ablaze. The offence came to be registered and accordingly the investigation came to be transferred to PW-5 Madhukar Sonawane, an API, who was attached to Nizampur police station. He drew the scene of offence Panchanama at Exhibit-20 in the presence of Panch witnesses and from the scene of offence, a petrol can and burnt pieces of a quilt were seized. He recorded statements of the witnesses and on the demise of Ujjwala, the Inquest Panchanama came to be drawn in the presence of Panch witnesses at Exhibit-28. Dead body of deceased Ujjwala was referred for postmortem examination and postmortem examination came to be conducted by PW-1 Dr.Ramesh Gadhari, who noticed that Ujjwala had sustained 94% burn injuries. He opined that cause of death was septicemia following thermal burns. Postmortem report is at Exhibit-19. Further investigation {4} Cri. Appeal No.330/2010 came to be entrusted to PW-6 API Jaising Pardeshi, who was also attached to the Nizampur police station. It appears that upon completion of the investigation, a charge sheet against the appellants came to be filed. 3. On committal of the case to the Court of Sessions, trial Court, vide Exhibit-7, framed charge against the appellants for an offence punishable u/s 302 r/w 34, 504 r/w 34 and 506 r/w 34 of the Indian Penal Code. Prosecution, in support of its case, examined 6 witnesses, while the defence of the accused is of total denial. Trial Court, upon appreciating the evidence, came to the conclusion that the prosecution had proved the offence against the appellants beyond reasonable doubt and accordingly convicted them. 4. In order to appreciate the submissions advanced before us by Shri.Shirish Gupte, learned Senior Counsel for the appellants and Shri.Kaldate, learned APP for respondent State, it would be necessary to refer to the evidence of the prosecution witnesses. 5. PW-2 Ramesh Gulale, Naib Tahsildar, who has recorded dying declaration at Exhibit-34, has proved the recording of the dying declaration and has also proved the contents of the same. There is absolutely no cross examination worth naming to doubt the statement of PW-2 Ramesh that he had recorded dying {5} Cri. Appeal No.330/2010 declaration at Exhibit-34. Similarly, Police Head Constable, Pandit Khairnar PW-4 has proved the statement of the deceased at Exhibit-38, which he had recorded. PW-3 Dr.Shinde has deposed about being requested by both PW-2 Ramesh as well as PW-4 Pandit for ascertaining condition of Ujjwala and PW-3 Dr.Shinde certifying that she was in fit condition to give her statement and thereafter the officers had recorded statement of the deceased. There is nothing in the cross examination of PW-2 Ramesh and PW-3 Dr.Shinde or PW-4 Pandit Khairnar, to remotely suggest that despite the injuries sustained by the deceased, to the extent of 94% thermal burns, the deceased was not in a fit condition to give her statement. The aforesaid facts, therefore, clearly prove that PW-2 Ramesh had recorded the dying declaration of deceased Ujjwalabai at Exhibit-34 while PW-4 Police Head Constable Pandit Khairnar had recorded statement of Ujjwalabai at Exhibit-38. 6. Mr.Gupte, learned senior counsel for the appellants, has urged before us that in the light of the fact that deceased had sustained 94% burn injuries, it is highly unlikely that deceased was in a condition to give her statement and could not have given such an elaborate statement at Exhibit-38. Reliance is placed by Shri.Gupte, learned Senior Counsel, on the Division Bench judgment of this Court in “Deepak Baliram Bajaj & Another V/s State of Maharashtra” 1993 Cri.L.J. 3269. The Division Bench, at paragraph No.15 has held thus- {6} Cri. Appeal No.330/2010 “15. In assailing the above dying declaration it was first contended on behalf of the appellant that having regard to the fact that Jyoti had sustained 100% burn and to the nature of internal injuries she sustained, as evidenced by the post-mortem examination report, she could not have made a detailed statement as appearing in Exhibit-7. It was next contended that in view of the manner in which the statement was recorded it could not be emphatically said that what was stated by Jyoti was recorded therein. In elaborating this contention it was submitting that an unusual procedure was adopted in the instant case in recording the dying declaration in as much as the patient made statements in Sindhi in answer to questions put in Sindhi. All the questions and answers were then translated into Hindi by PW-6 to enable the Constable to record the same in Marathi after translating from Hindi. While on this point it was also submitted that the process was reversed, if the evidence of PW-6 was to be believed, while explaining the contents thereof and getting the approval of a proper translation from the deponent. Another infirmity that was brought to our notice about the dying declaration was that even though PW6 asserted that he had read over and explained the contents of the dying declaration to the deceased in Sindhi, the endorsement in the dying declaration clearly showed that it was read over and explained in Hindi, and not in Sindhi.” 7. According to us, the ratio of this judgment would not be applicable to the facts of the present case, as the Division Bench had found that the dying declaration could not be relied upon for various other grounds. In the said judgment, the injured was giving her statement in Sindhi language, which was translated into Hindi and thereafter into Marathi by the scribe. The Division Bench, therefore, came to the conclusion that there was no {7} Cri. Appeal No.330/2010 authenticity to the translation nor was there any authenticity to the statement that the dying declaration was read over to the declarant and was admitted by her to be correct, as the endorsement was that the dying declaration was explained to her in Hindi language, which the deceased could not understand. On other grounds as well the Division bench found that no reliance could be placed upon the dying declaration relied in that case. In the present case, PW-3 Dr.Shinde has in categorical terms deposed that upon examining the deceased he had found that deceased was in fit condition to give her statement and accordingly PW-2 Ramesh and PW-4 Pandit, had recorded the statements at Exhibit-34 and Exhibit-38 respectively. There is nothing in their cross examination which would even remotely suggest that injured Ujjwalabai was not in a fit condition to give her statement on account of the burns of 94%. We, therefore, find that the fact that Ujjwalabai was in a fit condition to give her statement and her statements had been accordingly recorded, has been fully established by the prosecution. 8. Mr.Gupte, learned Senior Counsel, then urged before us that the contents of the two dying declarations are self destructive in the sense, acceptance of one necessarily renders the other as false. The aforesaid submissions of the learned senior counsel merits consideration. In the dying declaration at Exhibit-34, which is a brief dying declaration and not a cryptic dying declaration, injured Ujjwalabai states that on the day of the {8} Cri. Appeal No.330/2010 incident at about 4.00 a.m. all the three accused poured petrol on her and all the three accused set her ablaze. In the dying declaration at Exhibit-38, injured Ujjwala states that on the day of the incident, at about 4.00 am accused Bhaskar poured petrol on her from a Can, which he had brought for filling petrol in his motorcycle and the other accused instigated and exhorted Bhaskar to set her ablaze and accordingly Bhaskar lit a match stick and set Ujjwala ablaze. Obviously, in the first dying declaration Ujjwala attributes the act of pouring of petrol and setting her ablaze to all the three accused while in the second dying declaration she attributes the act of pouring petrol and setting her ablaze to accused Bhaskar. In the second dying declaration, she states that Bhaskar was instigated and exhorted by the other accused to set her ablaze. This instigation and exhortation is completely absent in the first dying declaration. Similarly, the allegations of pouring of petrol and setting Ujjwala ablaze by accused No.2 and 3 is also absent in the second dying declaration. Thus, the two dying declarations are contradictory in their contents. 9. A reference, in this behalf, may usefully be made to the Division Bench judgment of this Court in “Suresh s/o Arjun Dodorkar (Sonar) V/s State of Maharashtra” 2005 ALL MR (Cri) 1599. The Division Bench, in the said judgment, to which one of us (P.V.Hardas, J.) was a member, at paragraph No.9, has held thus- {9} Cri. Appeal No.330/2010 “In cases resting on multiple written dying declarations, the Courts cannot pick and choose any one dying declaration. All the dying declarations have to be consistent in respect of material aspects of the incident. According to us, consistency is expected in multiple dying declarations in respect of the names and the number of accused, the prelude to the incident and the incident itself. In these two dying declarations there is consistency in respect of the name and the number of accused. However, in respect of the prelude to the incident, there is variance. There is also variance in respect of the incident itself. The variance is apparent on perusal of the dying declarations and can be discerned from the perusal of the same.” 10. If the aforesaid test is applied, according to us, the acceptance of the dying declaration at Exhibit-34 falsifies the dying declaration at Exhibit-38 and vice-versa. The contents of the two dying declarations are entirely different. Though the names of the accused in both the dying declarations are the same, that would not impel us to place implicit reliance on either of the dying declaration or to rely on both the dying declarations. As pointed out by us above, acceptance of any one dying declaration would necessarily render the other as false and unreliable. In such circumstances, therefore, according to us, no reliance can be placed on either of the dying declaration, as it would be impermissible for the Court to pick and choose any one dying declaration while discarding the other. 11. Resultantly, therefore, we allow this appeal and quash and set aside the conviction of the appellants and acquit them of {10} Cri. Appeal No.330/2010 the offence with which they were charged and convicted. Fine, if paid by the appellants, be refunded to them. Since the appellants are in jail, they be released forthwith, if not wanted in any other case. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapel330-10