1 Criminal Appeal No.280 of 2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.280 OF 2011 1. Waman S/o.Gulab Kadam, Age-43 years, Occu-Agriculturist, R/o.Limbgaon, Tq. And Dist. Nanded 2. Bhagwan S/o.Dattaram Kadam, Age-50 years, Occu-Agriculturist, R/o.Limbgaon, Tq. And Dist. Nanded 3. Dadarao S/o.Dattaram Kadam, Age-43 years, Occu-Agriculturist, R/o.Limbgaon, Tq. And Dist. Nanded. APPELLANTS VERSUS State of Maharashtra RESPONDENT Mr.R.N.Dhorde h/f. Mr.V.R.Dhorde, learned counsel for the appellants. Mr.S.D.Kaldate, learned A.P.P. for respondent State (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 10/08/2011 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. While rejecting Criminal Application No.2372/2011, moved by 2 Criminal Appeal No.280 of 2011 the appellants, for their release on bail during the pendancy of this criminal appeal, hearing of the criminal appeal itself was expedited by our order dated 26/07/2011. Hence, this appeal is taken up for final hearing out of turn. 2. The appellants, who stand convicted for an offence punishable u/s. 302, 452 r/w. 34 of the IPC and sentenced to suffer imprisonment for life and to pay fine of Rs.2,000/- with default stipulation to undergo SI for 6 months for first offence, and to suffer RI for 3 years and to pay fine of Rs.1,000/- each with default stipulation to undergo SI for 6 months for the second offence, in Sessions Case No.20/06, by Extra Joint Ad-hoc Additional Sessions Judge, Nanded, by his judgment and order dated 10/05/2011, have questioned the correctness of their conviction and sentence by the present appeal. 3. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus - (a) In the night of 26/05/2005, at about 10.30 p.m. or so, wife of injured Kausar by name Rafiyabee contacted Syed Gaus Syed Gudu (P.W.No.5), her neighbourer, residing about 20-25 houses away from her house and informed that her husband had sustained burn injuries and further requested to help her to shift her injured husband to the hospital. Then injured Kausar was brought to Rural Hospital, Limbgaon, from where as per medical advice, he was 3 Criminal Appeal No.280 of 2011 admitted in Civil Hospital, Nanded. On receipt of MLC about admission of injured Kausar in the Civil Hospital, A.S.I. Mirza Yunus Baig (P.W.No.13), attached to Vazirabad Police Station, went to Civil Hospital, Nanded and recorded statement (Exh.68) of injured Kausar around 12.00 mid night. One more dying declaration (Exh.54) of the injured was then recorded by Special Judicial Magistrate Md.Ahemododdin Faruki (P.W.No.9) at about 12.30 mid-night. (b) On the basis of statement of Kausar at Exh.68, an offence was registered in Wazirabad Police Station at Cr.No.36/2005 against the appellants for an offence punishable u/s. 302, 452 r/w. 34 of IPC as Kausar succumbed to burns on 27/05/2005 at about 7.15 a.m. On receipt of intimation about the death of Kausar at Police o/p. in Civil Hospital, Nanded, A.S.I. Prabhakar Raghunath (P.W.No.12), attached to Wazirabad Police Station went in Civil Hospital and drew inquest panchnama (Exh.27) on the dead body. Then the dead body was referred for autopsy. (c) Dr.Balaji Chilkewar (P.W.No.8), Medical Officer attached to Civil Hospital, Nanded conducted autopsy on the dead body. During the post mortem, he noted superficial to deep burns injuries all over the body except face of injured Kausar. On face, burn injuries were present over lateral aspect of forehead, lateral aspect of orbital area of both and both cheeks and nose. All the injuries are anti-mortem. He has opined that cause of death of deceased is 4 Criminal Appeal No.280 of 2011 shock due to 95% burn injuries. Accordingly, he had prepared post mortem report at Exh.46/Exh.48. He has further opined that he is not sure whether the burns are due to kerosene or any other substance. He can not say the exact cause of the burns. (d) Investigation in CR No.36/2005 was carried out by A.P.I. Arun Rautwar (P.W.No.14). During the investigation, he visited the place of incident and drew spot panchnama (Exh.25). From the spot, he had seized burnt pieces of cotton. In the night of 27/05/2005, appellant no.1 Waman Gulab Kadam was arrested under arrest panchnama (Exh.74). Appellant no.2 and appellant no. 3 were arrested on 28/05/2005 under arrest panchnama at Exh.75 and Exh.76. During further investigation, he recorded statements of certain witnesses during the period of 28/05/2005 to 30/05/2005. While in custody, on 31/07/2005, appellant no.2 made voluntary disclosure statement which was recorded in memorandum (Exh.29) leading to the discovery of one empty bottle, said to contain with kerosene which was recovered from the place below the railway bridge and was seized under seizure panchnama Exh.30. On the same day, appellant no.3 also made disclosure statement recorded in the memorandum (Exh.31) leading to the discovery of one match box below the railway bridge seized under seizure panchnama at Exh.32 in presence of witnesses. During the further investigation, the articles were referred to Chemical Analyser alongwith covering letter Exh.37 on 15/06/2005. Further to the completion of investigation, 5 Criminal Appeal No.280 of 2011 charge sheet was filed in the court of J.M.F.C. Nanded. (e) On committal of trial to the Court of Sessions, learned Trial Court framed the charge at Exh.12 for an offence punishable u/s. 302, 452 r/w 34 of the IPC. Appellants pleaded not guilty to the charge and claimed to be tried. During the trial, prosecution has examined in all 15 witnesses to prove the guilt of the appellants. Defence of the appellants is of total denial and of their false implication in the prosecution case. On appreciation of prosecution evidence, Trial Court convicted and sentenced the appellants as stated above. From the record, it reveals that out of the 15 witnesses examined by the prosecution P.W.No.1 Sahebrao panch witness to the spot panchnama, P.W.No.3 and P.W.No.4 Ankush Patange and Shaikh Mustafa both are the witnesses to the alleged disclosure statement made by appellants no.2 and 3 leading to the discovery of empty bottle and match box at the instance of these 2 appellants, P.W.No.7 Syed Ejaz Syed Ahmed, elder brother of the deceased have not supported the case of the prosecution. (f) During the course of submissions across the bar, learned counsel for appellants have not seriously disputed that the death of the deceased was caused due to burn injuries and an un- natural death. (g) As the conviction of the appellants is mainly based upon 6 Criminal Appeal No.280 of 2011 the 2 dying declarations recorded by P.W.No.13 Mirza Yunus Baig at Exh.68 and by P.W.No.9 Md.Ahemoddin Faruki at Exh.54, learned counsel for appellants mainly attacked on the credibility of these 2 dying declarations and about the truthfulness and reliability of the evidence given by these 2 witnesses. 4. For better and effective appreciation of the submissions of learned counsel for appellants and that of learned A.P.P. for respondent/State, it is useful to advert to the evidence of the material witnesses examined before the Court below. 5. It has come in the evidence of P.W.No.5 Syed Gaus Syed Gudu that in the night of incident, he had helped Raphitabee, wife of injured Kausar to shift him from his house to Rural Hospital, Limbgaon. During this period, wife of Kausar do not disclose as to how the incident occurred or Kausar also do not disclose how he had sustained the burn injuries. On the contrary, evidence of this witness is totally silent on the point whether Kausar was able to speak or not. 6. It is in the evidence of P.W.No.2 Shaikh Ismail Shaikh Faridsab and P.W.No.7 Syed Ejaj Syed Ahmed that both of them are brother in laws of deceased Kausar. On receipt of telephone message around 11.00 p.m., they reached in the Civil Hospital, Nanded. They have stated in their evidence that deceased had sustained severe burn 7 Criminal Appeal No.280 of 2011 injuries and could not talk with them. They have further stated that deceased Kausar was able to speak only Urdu language and was not able to understand Marathi language at all. 7. It is in the evidence of P.W.No.13 Mirza Yunus Baig, who was then attached to Wazirabad Police Station that on receipt of M.L.C., he wrote a requisition letter (Exh.67) to Special Judicial Magistrate. Then he went to Civil Hospital, Nanded. In the hospital, after the Medical Officer examined injured Kausar and certified about his physical condition to give the statement, he recorded statement of injured Kausar at Exh.68. Thereafter, again injured Kausar was examined by Medical Officer and put an endorsement about his physical condition below the statement. Contents of the dying declaration were readover to the patient, which the patient admitted to be true and correct. Then he had obtained right hand thumb impression of Kausar on his statement. 8. He has stated in his cross examination that he received the M.L.C. at about 11.00 p.m. on that day. He admitted that wife of Kausar was present near him but denied that brothers of Kausar were present near him. After he saw the physical condition of the patient, he had sent requisition letter to the Special Judicial Magistrate, which letter was prepared by him in the ward itself. But later on he had corrected that he had not sent the letter to the Magistrate, but contacted the Magistrate on phone. He has further 8 Criminal Appeal No.280 of 2011 stated in his cross examination that he had met the Magistrate in the ward. Thereafter, he gave fatal and damaging admissions in his further cross examination, which admissions can not be treated as chance admissions. He has stated that he had recorded statement of Kausar after statement of injured was recorded by the Special Judicial Magistrate. After 10-15 minutes of recording of statement of injured by the Magistrate, he went in the ward and recorded statement of the injured. Mother tongue of the patient was Urdu. As per endorsement on this statement, at Exh.68, the statement was recorded between 12.00 to 12.15 a.m. i.e. the mid- night. 9. It is stated by Mohd.Ahimoddin Faruki (P.W.No.9) in his evidence that on 27/05/2005, he received requisition letter (Exh.51) from A.S.I. attached to out post in Civil Hospital, Nanded to record dying declaration of Syed Kausar. Then he went to Civil Hospital, Nanded. After the patient was examined by on duty Medical Officer and certified that the patient was in a fit condition to give his statement, he had personally verified condition of the patient by putting certain questions to him and then only he had recorded his dying declaration at Exh.54. Thereafter, contents of the dying declaration were readover to the patient, which the patient admitted to be true and correct. Thereafter he obtained right hand thumb impression of the patient on the dying declaration. Again the patient was examined and certified by the Medical Officer, and put an endorsement to that effect on the dying declaration. This dying 9 Criminal Appeal No.280 of 2011 declaration was recorded between 12.30 a.m. to 1.05 a.m. on 27/05/2005. In his evidence, he had proved the contents of the dying declaration at Exh.54. 10. He has stated in his cross examination that he was residing at Madina Nagar area of Nanded from where it require 15 minutes to reach to Civil Hospital. He was in sleep when he had received requisition letter. Requisition was neither addressed to him in his name nor his address was mentioned in the requisition letter. He had received the requisition letter at the out post of Civil Hospital, Nanded. He has further stated in his cross examination that he was not acquainted with the Incharge of out post namely Mirza Yunus Baig (P.W.No.13). He has further stated in his cross examination that wife of patient was present in the ward. The patient was sitting on the cot and was talking. He had not taken information from the patient but from the name of the patient, he realised that the patient is from Muslim community. He has further stated in his cross examination that patient was fully burnt from top to bottom, no clothes were seen on the person of the patient. He had denied that all the relatives of the patient were present in the ward and he prepared the dying declaration at their instance. 11. Dr.Sayyad Nishad Ali Sayyad Imayat Ali (P.W.No.15) has stated in his evidence that on the material day, he was serving in Medical College Hospital, Nanded and was attached to burnt patient ward. 10 Criminal Appeal No.280 of 2011 He had treated the patient. He has corroborated the evidence given by P.W.No.9 Mohd.Faruki and P.W.No.13 Mirza Baig to the extent that he had examined injured Kausar and certified about his condition and put an endorsement on both the dying declarations to that effect. He has stated in his cross examination that the admission papers of the patient were prepared by the Casualty Medical Officer, which were received in Burnt Patient Ward. In those papers, history of the patient was recorded. When he was questioned about the medical treatment given to the patient, physical condition of the patient, when he examined the patient, and certified about the condition of the patient, when dying declarations of the patient were recorded by P.W.No.9 Mohd. Ahimoddin Faruki and P.W.No.13 Mirza Yunus Baig, he was unable to answer all these questions as medical papers were not available when his evidence was recorded in the Court, as the papers of medical treatment provided to the patient were not tendered in the evidence before the Court below. The fact remains that medical papers about the treatment given to the patient in the Civil Hospital, Nanded were not tendered by the prosecution in the evidence before the Court below. 12. Dr.Balaji Tulshiram Chilkewar, (P.W.No.8), who had performed autopsy on the dead body of Syed Kausar, has stated in his evidence that, “entire body of the patient except the face was burnt. Both palms, legs were completely burnt. If there is deep burns on the thumb of the hands or toe of the legs, the thumb impression of the 11 Criminal Appeal No.280 of 2011 injured can not be taken.” 13. P.I. Arun Hanumant Rautwar (P.W.No.14) Investigation Officer in this case, has admitted in his cross examination that during the investigation, he had not recorded statement of Dr.Deshmukh, who had examined injured Kausar in Primary Health Centre at Limbgaon and immediately referred the patient to the Civil Hospital, Nanded. During the investigation, he had also recorded statement of wife of deceased Raphiyabee as she informed that she was present in the house at the time of incident. He has further stated in his cross examination that the house where the incident had taken place, is situated in the field. He has mentioned in the spot panchnama that there was darkness in the house of deceased as there was no electricity facility. 14. In the light of this evidence, we have heard learned counsel for appellants and learned A.P.P. for State. In his submissions across the bar, learned A.P.P. has fully supported the reasoning recorded by the learned Lower Court to convict the appellants. 15. On clear reading of evidence of P.W.No.5 Sayed Gaus Syed Gudu, who had helped the wife of deceased Raphiyabee to shift the injured to the Primary Health Center at Limbgaon, it reveals that his evidence is silent about any disclosure made by wife of Kausar as to how Kausar had sustained the injuries. His evidence is also silent 12 Criminal Appeal No.280 of 2011 on the point that as to how he had sustained the injuries. Kausar was brought in P.H.C. Limbgaon with the help of some other boys. Those boys were not examined during the trial by the prosecution. Then our attention is drawn towards the evidence of P.W.No.2 Shaikh Ismail Shaikh Faridsab and to the evidence of P.W.No.7 Syed Ejaz Syed Ahmed who are brother in laws of the deceased. As stated earlier, they also reached in the hospital on receipt of telephone message around 11.00 p.m. and according to them injured Kausar was not able to speak. Statement of deceased was recorded by P.W.No.13 Mirza Yunus Baig at 12.00 mid-night, and by Special Judicial Magistrate, Mohd.Ahimoddin Faruki, at 12.30 a.m. mid- night. Considering the evidence of P.W.No.2, P.W.No.5, P.W.No.7 about the condition of the patient, learned counsel for appellants would urge that even though the evidence given by P.W.No.9 and P.W.No.13 is to some extent was supported by P.W.No.15 on duty Medical Officer Dr.Syed Nisha Ali, but this evidence required to be discarded. Learned counsel for appellants would urge that on careful perusal of the cross examination of P.W.No.13 Mirza Yunus Baig, it reflects that he had recorded dying declaration at Exh.68, which according to the prosecution, first in time, but cross examination of P.W.No.13 clearly discloses that he had recorded dying declaration of the deceased after the same was recorded by the Special Judicial Magistrate (P.W.No.9). He would further urge that perusal of the alleged requisition letter at Exh.67 and Exh.51, indicates that letter was not written by P.W.No.13 Mirza Yunus Baig to P.W.No.9 13 Criminal Appeal No.280 of 2011 Mohd.Ahimoddin Faruki in his name neither address of P.W.No.9 was mentioned in the said requisition letter. In examination in chief P.W.No.13 Mirza Yunus Baig claims that he had sent that letter to P.W.No.9 While in cross examination, he has stated that he had telephoned to P.W.No.9 Mohd.Ahimoddin Faruki. Evidence of P.W.No. 9 is silent on the point that he had received telephone message from P.W.No.13 Mirza Yunus Baig. As against this, P.W.No.9 is sure that requisition letter Exh.51 and Exh 67 received by him at 12.20 mid- night. At the first place, his evidence suggests that he was in sleep at his residence when he received the requisition letter. It required 15 minutes to reach Civil Hospital from his residence. In ordinary course, when a person is in sleep, and he received some message, then it require some time to get prepared and to go outside. In the second breath, he has stated that he had received the requisition letter at the out post of the Civil Hospital, Nanded. For what reason, he reached at the out post of Civil Hospital, Nanded at the midnight was not explained by him anywhere in his evidence. Learned counsel for appellant would further urge that he is not acquainted nor known with the Incharge of out post of Civil Hospital, Nanded by name Yunus Baig. In substance, learned counsel for appellants would urge that the dying declarations at Exh.54 and Exh.68 are doubtful. Learned counsel for appellants would further urge that the both the dying declarations are mirror copy of each other, and it is beyond human probability. Learned counsel for appellant would further urge that in both the dying declarations, there is reference of 14 Criminal Appeal No.280 of 2011 wife of deceased Kausar, but admittedly, wife of deceased was not examined by the prosecution for whatever reasons best known to them. In the circumstances, it is urged that no reliance can be placed on the dying declarations at Exh.54 and at Exh.68, and appellants are entitled for benefit of doubt and subsequently for acquittal. 16. We have given our cautious consideration to the submissions of learned counsel for appellants and learned A.P.P. for State/respondent. At this juncture, it is useful to give the reference of the observations in the matter of Habeeb Mohd. Versus State of Hydrabad, AIR 1954 Supreme Court 51(1), wherein it is held that, “it is the boundant duty of the prosecution to examine a material witness, particularly when no allegation has been made that, if produced, he would not speak the truth. Not only does an adverse inference arise against the prosecution case from his non-production as a witness in view of illustration (g) to section 114 of the Evidence Act, but the circumstances of his being withheld from the court casts a serious reflection on the fairness of the trial.” These observations of the Apex Court are discussed at length and upheld in the later judgment of the Apex Court in the matter of State of U.P. Versus Jaggo alias Jagdish and others, AIR 1971 Supreme Court 1586 in para no.15, wherein it is observed that, “Ramesh is the person with whom Lalu was talking at the time of the alleged occurrence. Ramesh was mentioned in the first information report. It is true that all the 15 Criminal Appeal No.280 of 2011 witnesses of the prosecution need not be called but it is important to notice that the witness whose evidence is essential to the “unfolding of the narrative” should be called. This salutary principle in criminal trials has been stressed by this Court in the case of Habeeb Mohammad versus The State of Hyderabad, 1954 SCR 475 = (AIR 1954 SC 51), for eliciting the truth. The absence of Ramesh from the prosecution evidence seriously affects the truth of the prosecution case.” As we have already discussed that in the case in hand, in the dying declarations at Exh.54 and Exh.68, there is reference of wife of Kausar in terms that when he was in his house at 9.00 p.m. or so, appellants came in his house. Appellant no.1 caught both of his hands, appellant no.2 and 3 poured kerosene on his person and then set him on fire. On hearing his shouts, his wife came there and extinguished the fire by putting the bed-sheet on his person. In the meantime, the appellants ran away from the spot. Thus even though wife of deceased Kausar can not be termed as direct eye witness to the incident, but as she had immediately reached at the spot on hearing the shouts of her husband Kausar and when she came at the spot, appellant ran away from the spot, her non examination before the Trial Court by the prosecution certainly affects the credibility of the statement disclosed by Kausar in his two dying declarations at Exh.54 and 68. 17. It is further useful to give the reference of the observations of the Division Bench of this Court in the matter of Sunil Kashinath 16 Criminal Appeal No.280 of 2011 Raimale versus State of Maharashtra, 2006 ALL MR (Cri) 1117, wherein it is observed by the Division Bench that, “non examination of the eye witnesses who were present at the time of incident, is not proper on the part of prosecution. Dying declaration cannot be put at the same pedestal as direct account or eye witness account of the incident. Eye-witness account must stand on a higher footing.” For the observations which we have made in the earlier paragraph, wherein we have given the reference of presence of Raphiyabee, wife of deceased Kausar, as she reached at the spot soon after the incident, her non examination is fatal to the case of prosecution. 18. Further it is useful to give the reference of the observations of the Apex Court in the matter of Rashib Beg Versus State of M.P. (AIR 1974 SC 332), wherein it is observed that, “the dying declaration recorded under suspicious circumstances should not be acted upon without corroborative evidence.” Similar view is taken by the Apex Court in the matter of Nallapati Sivaiah versus Sub Divisional Officer, Guntur, A.P., AIR 2008 Supreme Court 19 wherein also it is held that, “the dying declaration must inspire confidence so as to make it safe to act upon. Whether it is safe to act upon a dying declaration depends upon not only the testimony of the person recording dying declaration – be it even a Magistrate but also all the material available on record and the circumstances including the medical evidence. The evidence and the material available on record must be properly weighed in each case to arrive at proper 17 Criminal Appeal No.280 of 2011 conclusion. The Court must satisfy to itself that the person making the dying declaration was conscious and fit to make statement for which purposes not only the evidence of persons recording dying declaration but also cumulative effect of the