1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1249 OF 2003 The State of Maharashtra ] Appellant Vs Nishikant Baburao Kamble ] Age 28 Yrs., R/o. 1044, "A" Ward, ] Finangai Mandir, Shivaji Path, Kolhapur ] Respondent Mr. H.J. Dedhia, APP for the Appellant - State Ms. Nasreen S.K. Auybi appointed advocate for the Respondent CORAM : SMT. RANJANA DESAI & SMT. V.K. TAHILRAMANI, JJ DATE : 26th MARCH, 2010 JUDGMENT: [PER SMT. V.K. TAHILRAMANI, J] 1. Through this appeal, the appellant – State of Maharashtra has challenged the judgment and order dated 03.05.2003 passed by 2nd Ad-Hoc Additional Sessions Judge, Kolhapur in Sessions Case No. 241 of 2002. By the said judgment and order, the learned Sessions Judge acquitted the respondent - original accused of the offence punishable under sections 302, 323 and 504 of I.P.C. 2. The prosecution case briefly stated is that deceased Dasharath Ramchandra Khade was resident of Kolhapur. He was apeal1249-03 2 addicted to liquor. On 31.08.2008 at about 8.00 p.m., he went to the shop of PW6 Shabbir. Dashrath purchased two bottles of liquor and started drinking near the shop. PW7 Manohar Buchade came to the spot at about 10.00 to 10.30 p.m.. Then, both of them sat there and started drinking liquor. At about 11.00 p.m., the deceased and PW7 Manohar Buchade went to Lal Chowk. At that time, the respondent came there. The respondent started shouting and asking the deceased,"why he had left him?" The respondent took out a bottle which was tucked at his waist and poured Kerosene on the person of the deceased and set him on fire with the help of matchstick which was in his pocket. Dashrath rolled on the ground and extinguished the fire. In the meantime, the respondent went away. PW7 Manohar was afraid so he went to his house. Dashrath went to the Police Station. On seeing his condition, the Police admitted him to C.P.R. Hospital, Kolhapur. PW19 Mahaveer Sakale recorded dying declaration (Exh 58) of Dashrath on 01.09.2002 at 10.30 a.m. On the basis of dying declaration, crime came to be registered. On 07.09.2002, Dashrath expired in the hospital. Postmortem note shows that he had sustained about 45% burn injuries. The cause of death is septicemic shock due to 45% superficial to deep burns. 3. Charge came to be framed against the respondent - apeal1249-03 3 original accused under section 302 of I.P.C for causing death of Dashrath, under section 323 for causing hurt to PW7Manohar and under section 504 of I.P.C. for intentionally insulting the deceased and Manohar by saying, "Why he left him there?". The respondent pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. From the cross-examination of witnesses, the further defence appears to be that as Dashrath was totally inebriated, he fell on a lamp and sustained burn injuries. After going through the evidence adduced by the prosecution, the learned Sessions Judge acquitted the respondent-accused as stated in para 1 above. Hence, this appeal. 4. We have heard learned APP for the appellant - State of Maharashtra and the learned advocate for the respondent - original accused. We have perused the evidence as well as the judgment and order passed by the learned Sessions Judge. After anxiously considering the matter, for the reasons stated herein below, we are of the opinion that the judgment and order passed by learned Sessions Judge does not call for any interference. 5. Though according to the prosecution, PW7 Manohar was an eye witness, he has not supported the prosecution. In apeal1249-03 4 fact, the story brought out in evidence of PW7 Manohar is that Dashrath was under the influence of liquor. Scuffle arose between the deceased and the respondent and in this scuffle under the influence of liquor, Dashrath fell on a lamp and sustained burn injuries. As the prosecution has not been able to bring on record any direct testimony in relation to the actual incident, the only material which can connect the respondent with the crime is the dying declaration (Exh 58). 6. It is well settled that if the dying declaration is found to be cogent and reliable, the same can be relied upon to convict the accused. We have carefully examined the evidence on record to see whether the dying declaration (Exh 58) can be safely relied upon. 7. In the present case, there is only one dying declaration on record. The said dying declaration has been recorded by PW19 API Mahaveer Sakale. The incident had taken place on 31.08.2002 and Dashrath died in the hospital on 07.09.2002. It is an undisputed fact that deceased Dashrath was in hospital for about a week, yet the only dying declaration was the one recorded by a police officer. It is the case of prosecution that the deceased survived up to 07.09.2002 i.e for one week after the incident, in such case, it was possible for the investigating officer to get recorded apeal1249-03 5 the statement of the deceased from the proper authorities. It is significant to note that the investigating officer took care to record the statements of the witnesses with the help of Judicial Magistrate First Class, Kolhapur. However, he failed to record the dying declaration, which is important piece of evidence from the authorized persons. The material on record shows that after API Sakale recorded the dying declaration, no effort was made by the investigating agency to get the dying declaration of Dashrath recorded by the Special Judicial Magistrate or Executive Magistrate. 8. According to the prosecution, the dying declaration (Exh 58) was recorded on 01.09.2002 at 10.30 a.m. PW20 Dr. Shivajirao Patil was on duty in casualty ward of the hospital from 9.00 p.m. to 9.00 a.m on 01.09.2002. He has stated that on 01.09.2002 at about 12.50 am, one Dashrath was admitted in the hospital with burn injuries. This witness has admitted that in the case papers, it is mentioned that the said patient had absconded at 7.00 am on that day. Thereafter, the patient came to be readmitted in the burn ward at 9.00 pm on 01.09.2002. It is not mentioned in the case paper as to when the patient absconded from the hospital on 01.09.2002. As to what happened on 01.09.2002, it would be necessary to go through the other evidence on record. The prosecution has examined PW9 Jaya Lakade who is the sister of the apeal1249-03 6 deceased. Jaya has stated that on 01.09.2002 at 6.30 am, her mother came to her house and informed her that her brother sustained burn injuries. Then, she went with her mother to her house and she had seen her brother Dashrath. This fact clearly shows that on 01.09.2002, the accused had absconded from the hospital and thereafter, he was readmitted in the hospital at about 9.00 p.m. In such case, the prosecution case that the dying declaration (Exh 58) was recorded on 01.09.2002 at 10.30 a.m. appears very doubtful. Looking to all these facts, we are of the opinion that the learned Sessions Judge committed no error in not relying upon the dying declaration (Ex. 58) 9. The last piece of evidence is that of oral dying declaration to PW9 Jaya Lakade who is sister of the deceased. She is not an eye witness. However, she has stated that on 01.09.2002 at 6.30 am, her mother came to her house and informed her that her brother sustained burn injuries. Then, she went with her mother to her house and she had seen her brother Dashrath. Dashrath had sustained burn injuries. She asked him as to how he sustained burn injuries whereupon Dashrath informed her that the respondent had put kerosene on his person and set him on fire. Thereafter, she and her mother took Dashrath to C.P.R. Hospital and admitted him. It is pertinent to note that this witness in her cross- apeal1249-03 7 examination has admitted that the police had informed her that Nishikant Kamble (respondent) was habitual offender so he should not be left without any action. PW9 Jaya also admitted that accordingly, the Police recorded her statement. She has also admitted that she did not know whether on the night of the incident, her brother was in a position to talk as he was fully under the influence of liquor. Thus, the evidence on record shows that the deceased was inebriated to such an extent that he was unable to correctly comprehend what exactly happened and hence, in his drunken and inebriated state, it was possible that he could have made an incorrect statement. This coupled with the admissions given by PW9 Jaya make her evidence unreliable. We have also discussed as to why we find that the dying declaration (Exh 58) does not inspire confidence. Looking to the evidence on record, we find that the conclusion arrived at by the learned Sessions Judge is a reasonable and plausible view. 10. The Supreme Court in the case of C.Anthony Vs. K.G.Raghavan Nair reported in (2003) 1 SCC 1 has observed that while hearing an appeal against an order of acquittal, if two reasonable conclusions can be reached on the basis of evidence on record, the appellate court should not disturb the finding of the trial court. We have already observed that the view taken by the learned Sessions Judge is a reasonable apeal1249-03 8 and possible view. Hence, we are not inclined to interfere in the judgment and order of acquittal. 11. In view of the above, appeal is dismissed. [SMT. RANJANA DESAI, J.] [SMT. V.K. TAHILRAMANI, J.] apeal1249-03