1 Cri.AppealNo.158/1994 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.158/1994 The State of Maharashtra = APPELLANT VERSUS Dattu Gangaram Jadhav Age: 30 Yrs.,r/o Jalgaon Tq. Karjat, District Ahmednagar. = RESPONDENT Mr.NB Patil, APP for Appellant/State Mr.SS Choudhari, Adv. for Respondent. ----- CORAM : A.H.JOSHI & A.R.JOSHI,JJ. DATE : 15th September, 2011. JUDGMENT (PER:- A.R.JOSHI,J.) 1) Heard rival submissions on present appeal preferred by State of Maharashtra challenging the judgment and order of acquittal dated 22nd November, 1993 passed by 3rd Additional Sessions Judge, Ahmednagar. The said impugned judgment and order of acquittal was passed in Sessions Case No.203 of 1993 wherein the accused/present respondent was acquitted for the offence punishable under Section 302 and under Section 436 of Indian Penal Code. 2) The facts of the case, in nutshell, are 2 Cri.AppealNo.158/1994 as under :- (i) Victim Sangeeta was a destitute deserted by her husband about five years prior to the incident of burning. After separating from her husband, she came back to her village, where her brother Vishwanath Khedekar (PW No.2) was residing. Initially she stayed with her brother in said village Mahi Tq. Karjat District Ahmednagar. However, due to the conduct of the victim, there were strained relations between the brother and sister and she started residing in the same village Mahi in nearby hut like structure, made up of wooden planks, brick-walls and ceiling made up of sugarcane fodder. (ii) The victim came in contact with accused Dattu Jadhav. Illicit relations developed between them. However, apparently, there were differences between them and allegedly she had hired some persons to assault the accused and on the fateful night, i.e. on 10th April, 1993, he entered the hut of the victim at about 10:00 p.m.. He questioned her as to why she was trying to send hirelings on him for assaulting him. She denied the allegations. She told him to leave her alone and not to continue illicit relations any further. This request was not accepted by the accused and he told that he will not leave 3 Cri.AppealNo.158/1994 the victim till she is alive. (iii) After this, the accused lifted kerosene bottle from the hut and poured kerosene on person of the victim and set her ablaze. Due to the flammes, roof of the hut started burning. The victim ran out of the hut following the accused, who escaped from the spot. She raised shouts for help whereupon nearby persons gathered there including her brother PW No.2 – Vishwanath. She was taken to nearby place and enquiries were made with her and allegedly she disclosed as to accused setting her on fire. She was initially taken to Mirajgaon Primary Health Centre, where police party arrived on intimation and her first dying declaration was recorded, which is Exhibit-26. It was recorded by police constable – PW No.10 under the instructions of ASI – Suryabhan Wavhal (PW No.7). On the said dying declaration, endorsements of attending doctor were obtained. (iv) At the Primary Health Centre, the victim was not for long time and within an hour or so, she was referred to Civil Hospital at Ahmednagar. While under treatment at Civil Hospital, her second statement was recorded, which is Exhibit-10. It was recorded by Naib-Tahsildar - PW No.1 – Muktaram Shinde. 4 Cri.AppealNo.158/1994 (v) On the strength of the first statement (Exhibit-26), FIR was lodged against the accused and investigation was started. Panchanama of scene of offence was drawn. Statements of witnesses were recorded. (vi) While under treatment at General Hospital at Ahmednagar, the victim succumbed to 88% burn injuries. She died on 19th April, 1993. The cause of death was "shock due to septicemia due to burns". On death of the victim, offence punishable unde Section 302 of IPC, was added in the charge sheet. 3) Certain factual position is required to be narrated prior to discussing the merits of the case and deciding whether there is anything to interfere with the order of acquittal. The said points are as under :- (1) There is no direct evidence as to anybody witnessing the accused setting the victim on fire; (2) There are two dying declarations, first one Exhibit-26 recorded at Mirajgaon Primary Health Centre at about 11.50 p.m. and second one on 12th April, 1993 when the victim was admitted in Ahmednagar Civil Hospital being Exhibit-10; (3) According to PW No.2 – Vishwanath Khedekar brother of the 5 Cri.AppealNo.158/1994 victim, she gave the oral dying declaration before him taking the name of the accused as setting her on fire after pouring kerosene and after the quarrel on account of alleged sending of hirelings by the victim for assault on the accused. (4) PW No.4 – Gautam a neigbour of the victim, did not support the case of the prosecution; so also PW No.6 one Kisan distant cousin brother of the victim, did not support case of prosecution inasmuch as they denied the suggestion that the victim made dying declaration before them to PW No.2 – Vishwanath; (5) Admittedly, there is nothing recovered at the instance of the accused; (6) The accused was arrested on 11th April, 1993 on the next day of the incident. 4) We have observed that the learned Sessions Judge had disbelieved both the written dying declarations and also disbelieved the oral dying declaration allegedly given before PW No.2 – Vishwanath. We have also gone through the reasoning given by the learned Sessions Judge as to not believing the oral dying declaration before PW No.2 for the reason of hostility shown by PW No.4 neighbour and PW No.6, distant cousin brother of the victim. What was also weighed with the learned Sessions Judge was non- examination of any other neighbours, who can 6 Cri.AppealNo.158/1994 support the case of prosecution as to making of dying declaration by the victim to her brother - Vishwanath. 5) So far as oral dying declarations are concerned, we have observed that there is a variance in the manner in which the first dying declaration (Exhibit-26) was recorded. As per the substantive evidence of PW No.7 – ASI Suryabhan Waval, it was recorded on his instructions by PW No.10 in the hand-writing of PW No.10. It was so recorded when the victim was in the jeep brought in front of Primary Health Centre, Mirajgaon. About 30 minutes were taken for recording the said dying declaration. It is also seen from substantive evidence of PW No.7 that during that entire period, he did not take any steps to call for any Magistrate for recording the statement though he had such ample opportunity for making such arrangement. 6) As against this evidence, it is observed from substantive evidence of PW No.10 – Bhausaheb Bhatane - a police constable, that he recorded the first dying declaration (Exhibit-26) in his own hand-writing and that time, the patient was admitted in the Primary Health Centre, Mirajgaon and was rather under medical observance by the attending doctor. He does not mention anything 7 Cri.AppealNo.158/1994 regarding the said dying declaration recorded while the victim was still in the jeep. This variance weighed with the learned Sessions Judge to disbelieve said dying declaration. 7) So far as second dying declaration is concerned, it is observed by the learned Sessions Judge that prior to this dying declaration, which was recorded on 12th April, 1993 at Ahmednagar Civil Hospital, the victim was in constant contact with her relatives and mainly PW No.2 – Vishwanath and as such, the learned Sessions Judge did not believe the correctness of the dying declaration and accepted the defence of the accused on preponderance of probabilities as to tutoring of the witness. 8) We have also observed that the another defence of accused was also critically examined inasmuch as the involvement of the accused at the instance of one Kalyanrao Khedkar, who was Sarpanch of village Mahi at the relevant time and was close relative of victim Sangeeta and her brother – Vishwanath. It was also discussed by the Sessions Judge as to the factual position that the jeep, in which the victim was brought to Mirajgaon Primary Health Centre, belonged to said Kalyanrao. Also what was weighed with the learned Sessions Judge was the circumstance that 8 Cri.AppealNo.158/1994 said Primary Health Centre, Mirajgaon was run by Zilla Parishad and Kalyanrao Khedkar was also a member of Zilla Parishad and as such, there was a possibility entertained by the Sessions Judge as to said Kalyanrao could have influenced on the investigating machinery so as to implicate the accused out of political rivalry. On this aspect, the learned Sessions Judge has also discussed the factual position that there were two factions in the said village and accused was a member of the faction rival to the faction of Kalyanrao Khedkar. The Sessions Court has also discussed the circumstance that on the complaint of one Santosh Bora of Jalgaon, police had arrested said Kalaynarao and other persons from Khedkar family on 10th April, 1993 itself, i.e. the day of incident in the morning, however, they were released on bail in the afternoon and as such, arrest was at the behest of brother of the accused, who was political opponent of Kalyanrao. Apparently this must have infuriated Kalyanrao to take revenge on his rivals. This theory was accepted by the learned Sessions Judge on preponderance of probabilities in the light of the mitigating circumstances of the case of prosecution mentioned above. 9) We have gone through the substantive 9 Cri.AppealNo.158/1994 evidence of the witnesses and the effect of two dying declarations and also the effect of the oral dying declaration given to PW No.2 in the light of hostility shown by PW Nos.4 and 6 and in that event, we are of the view that there is nothing to entertain another view than that taken by the learned Sessions Judge. 10) Considering the scope of this Court in dealing with the appeal against acquittal, in our view, there is nothing to re-agitate the matter and to come to the different conclusion than that drawn by the Sessions Court. 11) In the result, there is no merit in the appeal against acquittal preferred by the State and hence the same is disposed of with following order. ORDER. Criminal Appeal No.158/1994 stands dismissed. sd/- sd/- (A.R.JOSHI,J.) (A.H.JOSHI,J.) bdv/ fldr.16.9.11 Authentic copy (BD VADNERE,PS)