1 Criminal Appeal No.83 of 2010 with Criminal Appeal No.48 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.83 OF 2010 1. Amrut S/o.Manikrao Bedre, Age-32 years, Occu-Agriculturist, 2. Manikrao S/o.Dadarao Bedre, Age-70 years, Occu-Agriculturist, 3. Bhagirathibai S/o.Manikrao Bedre, Age-60 years, Occu-Household, 4. Bhimrao S/o.Manikrao Bedre, Age-25 years, Occu-Agriculturist, All are R/o.Sawargaon, Tq.Loha, Dist. Nanded APPELLANTS VERSUS The State of Maharashtra RESPONDENT Mrs.S.S.Jadhav, learned counsel for the appellants. Mr.V.D.Godbharle, learned A.P.P. for respondent State. WITH CRIMINAL APPEAL NO.48 OF 2010 1. Sakhubai W/o.Raosaheb Bhalke, Age-42 years, Occu-Household, 2. Raosaheb S/o.Govindrao Bhalke, Age-50 years, Occu-Agriculturist, 2 Criminal Appeal No.83 of 2010 with Criminal Appeal No.48 of 2010 Both are R/o.Sawargaon (Nusrat) Tq.Loha, Dist. Nanded APPELLANTS VERSUS The State of Maharashtra Through Police Station Malakoli, Dist. Nanded RESPONDENT Mr.G.D.Kale, learned counsel for the appellants. Mr.V.D.Godbharle, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 09/06/2011 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. Appellants in Criminal Appeal No.83/2010, filed by the original accused no.1 to original accused no.4, who stand convicted for an offence punishable u/s. 302 r/w. 34 of The IPC and were sentenced to suffer imprisonment for life and to pay fine in the sum of Rs. 1,000/- each, with the default stipulation to undergo further RI for 15 days. Appellants in Criminal Appeal No.48/2010 are original accused no.5 and 6. All the appellants in Criminal Appeal No. 83/2010 and in Criminal Appeal No.48/2010 were convicted for an offence punishable u/s. 498-A r/w. 34 of The IPC and were sentenced to suffer RI for one year and to pay fine in the sum of Rs.5,000/- each with default stipulation to undergo further RI for 7 days. 3 Criminal Appeal No.83 of 2010 with Criminal Appeal No.48 of 2010 Original accused no.1/Appellant no.1 in Criminal Appeal No.83/2010 was convicted for an offence punishable u/s.323 of The IPC and sentenced to suffer RI for 3 months and to pay fine in the sum of Rs. 500/- with the default stipulation to undergo further RI for 7 days in sessions Case No.34/2008 vide judgment and order dated 08/01/2010, passed by the Ad-hoc Additional Sessions Judge, Kandhar, have questioned the correctness of their conviction and sentence. 2. As both these appeals are arises out of the judgment and order passed in Sessions Case no.34/2008, both these appeals to be disposed for by one common judgment. (For short, appellants in both these appeals are referred by their original no.shown in the cause title of the Sessions Case in the further judgment). 3. Such of the facts as are necessary for the decision in these appeals can be summarized as follows : a) On 19/06/2008, deceased Jayashri Amrut Bedre r/o.Sawargaon, Tal.Loha, Dist. Nanded was admitted in the hospital in burnt condition. Following to the admission of Jayashri in the hospital, intimation was given to Wazirabad Police Station. Around 12.00 p.m., Mahendrakumar Gupta (P.W.No.3) serving as C.J.J.D. and J.M.F.C. at Nanded, recorded dying declaration of victim at Exh. 29, after she was examined by Dr.Malhar Ramesh Tilak (Exh.12) and 4 Criminal Appeal No.83 of 2010 with Criminal Appeal No.48 of 2010 certified that she is conscious and mentally fit to give her statement. In the evening of the same day, A.P.I. Ramchandra Laxman Shinde (P.W.No.11), attached to Malakoli Police Station also received the information about an admission of Jayashri in burnt patient ward. Immediately, he visited the hospital. In his presence, injured Jayashri was examined again by P.W.No.12 Dr.Malhar Tilak and certified that she is in a fit mental condition to give her statement, and then P.W.No.11 recorded her statement. On the basis of this statement, he registered an offence vide CR No.28/2008 for an offence punishable u/s. 498-A, 307, 323 r/w. 34 of The IPC against the appellants in both these appeals. b) Investigation in the said offence was carried out by P.W.No. 11. During the investigation, he forwarded special report (Exh.53) about the registration of an offence to Dy.S.P. Kandhar., He had also received copy of the dying declaration recorded by J.M.F.C.Nanded in sealed cover. During further investigation, on 20/06/2008, appellant/accused no.2 Manikrao and appellant Sakhubai/original accused no.5 were arrested vide arrest panchnama Exh.37 and 40. On the same day, he visited place of incident, which was shown by Ramdas Shankarrao (P.W.No.2) uncle of victim Jayashri and prepared spot panchnama (Exh.54) in the presence of Bapu Narba Bedre (P.W.No.7) and Uttam Baliram (P.W.No.10). From the place of incident, he had seized partly burnt pieces of polyster cloth, which he 5 Criminal Appeal No.83 of 2010 with Criminal Appeal No.48 of 2010 deposited with the muddemal clerk and obtained receipt (Exh.55). On that day, he recorded statements of parents of victim and relatives of victim. On 21/06/2008, he arrested remaining accused, and prepared arrest panchnama (Exh.36, 38, 39 and 41) to that effect. In the night of 21/06/2008, at about 11.53 p.m. Jayashri succumbed to burn injuries in the hospital. Accordingly, intimation was received from the hospital. In view of intimation, offence punishable u/s. 302 of the IPC was added in the said CR. One constable by name Alwar from Wazirabad Police Station, then went to Civil Hospital Nanded and carried inquest panchnama Exh.27 on the dead body of Jayashri. Then, the dead body of Jayashri was sent for post mortem. c) Dr.Anant Patil (P.W.No.5), attached to Government Medical College performed autopsy on the dead body of Jayashri. He had noticed 96% burn injuries, superficial to deep burn tissues. Accordingly, he had prepared post mortem notes at Exh.33 and issued provisional post mortem report (Exh.34) wherein he has opined that the death was caused due to septicemic shock due to superficial deep burn injuries. In column no.17 of Exh.33, he had given particulars of burn injuries noticed by him on the person of the deceased. Relevant medical papers were received by the Investigation Officer alongwith covering letter Exh.57 from Wazirabad Police Station. On 23/06/2008, supplementary statement of the 6 Criminal Appeal No.83 of 2010 with Criminal Appeal No.48 of 2010 parents and uncle of the deceased were recorded. On that day. Statement of one Bhujangrao (P.W.No.4) was recorded. While in custody, accused no.1 Amruta, husband of the deceased made voluntary disclosure statement (Exh.58), which resulted in the recovery of one bottle and one match box kept behind the grain container in his house, which was seized under seizure panchnama (Exh.59). During further investigation, statements of some witnesses were recorded. On 02/07/2008, seized property during the investigation was forwarded for analysis alongwith Police Constable Chitale (P.W.No.8). After completion of investigation, charge sheet was filed against all the appellants in the Court of J.M.F.C. Loha. d) On committal of the trial to the Court of Additional Sessions Judge, Kandhar, charge was framed against the appellants/accused at Exh.9 for an offence punishable u/s. 498-A, 323, 302 r/w. 34 of The IPC, to which all the appellants pleaded not guilty and claimed to be tried. It appears that, during the trial to substantiate the charges lavelled against the appellants, prosecution has examined total 12 witnesses. Defence of the accused was of total denial, as according to them victim Jayashri had sustained accidental burn injuries, which resulted in her death. On appreciation of the evidence laid by the prosecution, learned Lower Court was pleased to convict all the appellants for an offence punishable u/s. 498-A r/w. 34 of The IPC, appellants in Criminal Appeal No.83/2010, original accused no.1 to 4 7 Criminal Appeal No.83 of 2010 with Criminal Appeal No.48 of 2010 for an offence punishable u/s. 302 r/w. 34 of The IPC and original accused no.1 for an offence punishable u/s. 323 of The IPC and sentenced as stated above. 2. Before appreciation of the statements of the respective counsels, it is necessary to advert to the evidence of material prosecution witnesses, relying on whose evidence, the learned Lower Court has convicted the appellants for the offences as stated above. 3. It reveals from the evidence recorded before the learned Lower Court that the conviction of the appellants is based on the dying declaration at Exh.29, recorded by P.W.No.3, oral dying declaration of the victim before P.W.No.4, Post mortem report of P.W.No.5 Dr.Anant Patil, second dying declaration of the victim, recorded by (P.W.No.11), who is also an investigation officer i.e. Ramchandra Laxman Shinde, and the evidence of Dr.Malhar Ramesh Tilak (P.W.No.12), who has treated the deceased in the Government Medical College, Nanded. 4. It is in the evidence of P.W.No.3 Mahendrakumar Mannaprasad Gupta that at the relevant time, he was serving as a C.J.J.D. and J.M.F.C. Nanded. On receipt of letter dated 19/06/2008 from Wazirabad Police Station, he had been to Guru Govindsingji Hospital, Nanded to record the dying declaration of Jayashri Amrut Bedre, who was admitted in Ward No.14. In his presence, Medical Officer P.W.No. 8 Criminal Appeal No.83 of 2010 with Criminal Appeal No.48 of 2010 12 Dr.Malhar Tilak examined Jayashri and certified that she is conscious and mentally in a fit condition to give her statement. Accordingly, he recorded statement of victim Jayashri (Exh.29) He has deposed in his evidence that he introduced himself to victim Jayashri. On his asking, Jayashri gave her name, age and residential address, and further told him that his mother in law, father in law, husband and brother in law were present in the house. Her husband asked her to pack the bag. She went inside the house. Her husband asked her to go out of the house, to which she replied in negative. All the persons pushed her inside the house and then her husband poured kerosene on her person. Her mother in law snatched her son from her, but did not state as to who had set her on fire. After her statement was recorded, contents therein were readover to her, which she has admitted to be true and correct. Thereafter, he obtained her right hand thumb impression, which is counter signed by him. After her statement was concluded, again she was examined by the Medical Officer and put an endorsement to that effect at the end of the dying declaration. He had recorded this dying declaration in between 12.45 to 1.00 p.m. He had kept the dying declaration in the sealed cover. He prepared the copies of the dying declaration and one photo copy of the dying declaration was handed over to Wazirabai Police Station. He has further stated that the sealed cover containing the original dying declaration was handed over to C.J.M. Nanded, which was opened in the Court 9 Criminal Appeal No.83 of 2010 with Criminal Appeal No.48 of 2010 during the trial. He identified the cover Exh.30, in which he had kept the original dying declaration. He has stated in his cross examination that 2-3 persons were present near the bed of the Jayashri, but he had not inquired with them, about their relation with Jayashri. He had denied the suggestion that due to effect of Sedatives, Jayashri was not in a position to talk. He has denied the suggestion that Exh.29 is not the dying declaration given by Jayashri, but was prepared at the instance of uncle of Jayashri. 5. Bhujangrao Gangaram Ballore is P.W.No.4. He has deposed that he knew Shivaji Shankarrao, the father of victim Jayashri. He has deposed that Jayashri is the youngest daughter of Shivaji (P.W.No.1) Two months prior to the demise of Jayashri, Ramdas P.W.No.2 had been to his house and requested to go to the maternal house of Jayashri and to convince the appellants as they were illtreating Jayashri. He has further stated that accordingly he had been to Sawargaon, met the appellants at Sawargaon and requested them not to illtreat Jayashri. 15 days thereafter, Ramdas, uncle of Jayashri (P.W.No.2) brought Jayashri to his house at Landgewadi, at that time Jayashri had been to his house and disclosed that his visit to her maternal house became futile, as illtreatment is still going on. This harassment was on the ground that she was of dark complexion. He has further stated that 4 to 5 days thereafter, Jayashri returned to her matrimonial house. About 15 days thereafter, a phone call 10 Criminal Appeal No.83 of 2010 with Criminal Appeal No.48 of 2010 was received that Jayashri sustained burn injuries and was admitted in the Government Hospital at Nanded. He had been to the hospital at Nanded to see Jayashri. He has further stated that when he met Jayashri in the hospital, she had disclosed that her husband had assaulted her in the presence of remaining accused and poured kerosene on her person and put her on fire. 2 days thereafter Jayashri succumbed to burn injuries in the hospital. He has stated in his cross examination that he is acquainted with all the appellants even prior to the marriage of Jayashri with appellant no.1. He has also admitted that house of uncle of Jayashri is situated in front of his house and they belongs to same family. He has also admitted that he has taken initiative part in the settlement of marriage of Jayashri with accused no.1. Omission is proved in his cross examination that the fact did not appear in his statement before police that Jayashri disclosed to him that she was taunted by the appellants on account of her dark complexion. He has denied the fact that Jayashri has not made any oral dying declaration before him. 6. Dr.Malhar Tilak (P.W.No.12) has deposed in his evidence that on 19/06/2008, Jayashri was admitted in the casualty department at about 7.50 a.m. One Dr.Dange was Incharge of that ward. After providing initial treatment, Jayashri was admitted in Burn Ward No. 14. He was attached to the said Ward as Jr.resident Medical Officer. 11 Criminal Appeal No.83 of 2010 with Criminal Appeal No.48 of 2010 He has further deposed that on that day at 12.00 p.m., Mr.M.M.Gupta, J.M.F.C. (P.W.No.3) had recorded statement of Jayashri, at that time he had examined Jayashri before her statement was recorded by him, and put his endorsement respectively in the beginning and end of her statement at Exh.71. He has deposed that throughout this time, Jayashri was conscious and mentally fit to give her statement. He has further stated that on the same day, at about 6.30 to 6.40 p.m., A.P.I. Shinde (P.W.No.11) recorded one more statement of Jayashri, at that time, he examined Jayashri before and after statement of Jayashri was recorded and certified that Jayashri was conscious and mentally fit to give the statement. These endorsements are at Exh.72. He has also deposed that he was present alongwith A.P.I. Shinde throughout recording of dying declaration of the patient. In his evidence, he had produced the photo copies of the case papers of Jayashri at Exh.74. These case papers are from the admission of Jayashri in the hospital till she succumbed to injuries on 21/06/2008 at about 11.55 p.m. He has stated in his cross examination that as per the hospital record, Jayashri was admitted in the hospital on 19/06/2008 at 7.50 a.m. As per the practice followed in the hospital, the history of the incident was recorded in the hospital record either given by the patient, or the person who have brought the patient in the hospital. He has admitted that in the hospital record, the history is recorded as accidental burns at 6.30 a.m. As per record, at 7.55 a.m. family 12 Criminal Appeal No.83 of 2010 with Criminal Appeal No.48 of 2010 members of Jayashri were with her. He has stated that as per hospital record, physical condition of Jayashri was poor, however he has denied that Jayashri was not fully conscious and mentally fit to give her statement at 12.45 p.m. when her statement was recorded by P.W.No.3 J.M.F.C. Mr.Gupta, so also recorded by P.W.No.11, A.P.I. Shinde. 7. In his evidence, P.W.No.11 Ramchandra Laxman Shinde proved the contents of the dying declaration of Jayashri recorded by him, which is at Exh.51 in which she has implicated all the appellants and told about the particular role played by them. 8. In this backdrop, we have heard submissions of learned counsel appearing for the respective appellants and learned A.P.P. for State. By drawing our attention at Exh.74, it is urged on behalf of the appellants that as per the hospital record, proved through the evidence of P.W.No.12 that at the time of admission of Jayashri in the Civil Hospital, history of accidental burns was recorded. On clear perusal of the hospital record, it reveals that Jayashri was admitted in the hospital not by her relatives but by one Nandu, who is not examined by the prosecution. It is urged that the fact is clear from these medical papers of admission of Jayashri in the hospital that her general condition was poor, which can be inferred from the observations of the doctors treated Jayashri in the hospital and the 13 Criminal Appeal No.83 of 2010 with Criminal Appeal No.48 of 2010 record maintained in the hospital. It is further urged that in the first dying declaration recorded by P.W.No.3 at Exh.29, it is only stated that Kerosene was poured on her person by accused no.1 and no role was attributed about the act committed by the remaining appellants. By drawing our attention towards Exh.51, the second dying declaration recorded by A.P.I., who has later on taken over the investigation in the said crime, implicate all the appellants and certain role was attributed to them, it is urged that this dying declaration was recorded after the span of more than 6 hours. During this time, the relatives of the deceased were with the deceased and tutoring victim Jayashri on their part, can not be rulled out. It is also urged on behalf of appellants in Appeal No. 48/2010 that appellant no.5 is the sister in law of the deceased, who is residing in her matrimonial house with her husband and other relatives i.e. appellant no.6, and un-necessarily she was dragged and implicated in the present offence. It is also urged that to support the contents of second dying declaration, even though parents of the deceased i.e. father P.W.No.1 Shivaji and uncle P.W.No.2 Ramdas were examined, they have not supported the case of the prosecution. It is also urged that the rikshaw driver was examined on behalf of the prosecution P.W.No.9 Shaikh Nazir, whose evidence is also silent on the point as to who has carried the victim to Civil Hospital, Nanded. In the premise, prayed to allow the appeals. As against this, learned A.P.P. supports the judgment of the Trial Court. 14 Criminal Appeal No.83 of 2010 with Criminal Appeal No.48 of 2010 9. Considering these submissions across the bar and on re- appreciation of the evidence, it is clear that the case of the prosecution is rests on dying declaration at Exh.29, recorded by P.W.No.3, dying declaration at Exh.51 recorded by P.W.No.11, A.P.I. Shinde, who had later on carried out the investigation in the said case, and the oral dying declaration before P.W.No.4 Bhujangrao coupled with the medical evidence. 10. At this juncture, we may take a note of the fact that even though it is tried to bring on record by drawing our attention towards the hospital record at Exh.74, it is not made clear that on whose instructions, history was recorded at Exh.74 about the accidental burns at 6.30 a.m.,as at that time, victim was with the appellants. Statements of all the appellants is totally silent on the point as to what is that accident. Apart from the silence of the appellants, the spot panchnama is also silent about this alleged accident and the accidental burns recorded on the first page of Exh.74, history recorded in the hospital record. It is also to be noted that if it is a case of an accident, then it is but natural that family members of the victim will admit the victim in the hospital. But as per the hospital record, one Nandu had admitted the victim in the hospital at Nanded. Entire evidence is silent on the point as to who is this Nandu. 11. Further aspect which require consideration is that in the first 15 Criminal Appeal No.83 of 2010 with Criminal Appeal No.48 of 2010 dying declaration, there is mentioning of the overact of pouring of kerosene by appellant no.1. In this connection, evidence given by P.W.No.4 Bhujangrao, before whom the victim has made oral dying declaration discloses only overact of appellant no.1, the husband of the victim that he poured kerosene on the person of victim and set her on fire, which is consistent with the dying declaration recorded first in time by P.W.No.3. So far as dying declaration recorded by P.W.No.11 is concerned, it was recorded after the gap of more than 6 hours. During this period, the parents of the victim reached in the hospital. No doubt, as stated earlier, father and uncle of the deceased were examined during the trial, but unfortunately they have not supported the case of the prosecution, but possibility of tutoring the victim can not be rulled out when her second dying declaration was recorded, implicating all the accused in the said offence. Still there is consistency in that dying declaration about the role played by husband of the victim, appellant no.1 in Criminal Appeal No. 83/2010. In the premise, as the evidence about active role played by the appellants/accused other than accused no.1, is silent in the first dying declaration at Exh.29 so also in the oral dying declaration of the victim before P.W.No.4, whose names and acts are reflected in the second dying declaration, are entitled for benefit of doubt. 12. We may fortify our view on the basis of observations of the Apex Court in the matter of Abrar versus State of Uttar Pradesh, 16 Criminal Appeal No.83 of 2010 with Criminal Appeal No.48 of 2010 AIR 2011 Supreme Court 354, wherein it is observed that during the investigation, multiple dying declarations were recorded and the case of the prosecution exclusively rests on these dying declarations, minor discrepancies inter-se in those dying declarations can not be the ground of acquittal of the accused with regard to the presence of a particular accused is the dying declarations are consistent. In both the dying declarations, the victim was consistent about the role played by accused no.1. It is to be accepted in connection with the act attributed about the role played by accused no.1 and 1 only, but in view of the improvement in the second dying declaration, benefit of doubt will go to the remaining accused. 13. In the substance, criminal appeal no.83/2010 is partly allowed. Conviction and sentence of accused no.1 for an offence punishable u/s. 302 of the IPC is hereby maintained and confirmed. The conviction of the remaining accused for an offence punishable u/s. 302 r/w. 34, 498-A r/w. 34 of The IPC is hereby quashed and set aside. Conviction of appellant no.1 in Cri.Appeal No.83/2010 is also quashed and set aside for an offence punishable u/s. 498-A r/w. 34 and for an offence punishable u/s. 323 of the IPC. Appellants no.2 to 4 are on bail, their bail bonds stand cancelled. Fine amount, if any, paid by the appellants who are acquitted for the offences with which they were charged, be refunded to them. 17 Criminal Appeal No.83 of 2010 with Criminal Appeal No.48 of 2010 14. Criminal Appeal No.48/2010 is hereby allowed and the conviction and sentence of the appellant for an offence punishable u/s. 498-A r/w. 34 of The IPC is hereby quashed and set aside. Bail bonds of the appellants stand cancelled. Fine amount, if any, paid by the appellants, be refunded to them. 15. Both the appeals stand disposed of accordingly. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/JUNE 2011/cri.appeal 83-2010