drp {1} Cri. Appeal No.105/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.105 OF 2009 Gajanan s/o Sampat Kamble APPELLANT Age­28 years, Occ­Labour R/o Bhagwati, Tq­Sengaon, Dist­Hingoli VERSUS The State of Maharashtra RESPONDENT Through Police Station Hingoli (Rural) through Complainant ­ Ramabai w/o Gajanan Kamble ....... Mr.N.B.Suryawanshi, Advocate for the appellant (Appointed) Mr.K.G.Patil, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 5th January 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. The appellant, who stands convicted for an offence punishable u/s 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs.5000/­, in default to suffer SI for six months, in Sessions Case No.23/2005, by the Additional Sessions Judge, Hingoli vide judgment and order dated 05.01.2009, has questioned the correctness and legality of drp {2} Cri. Appeal No.105/2009 the said judgment. 2. Such of the facts, as are necessary for the decision of this appeal, may briefly be stated thus ­ a) Ramabai Kamble, victim, was admitted in Civil Hospital, Hingoli at about 6.45 p.m. on 09.02.2005 by one Sudam Dhondiba Bhise. Immediately, thereafter, information was passed on to the police Chowki, situated within the premises of the Civil Hospital. On receipt of the MLC, PW­3 Pandurang Kamble, Head Constable, rushed to the burn ward contacted and Dr.Ashok Giri, on duty Medical Officer, who pointed the injured to him. After the injured Ramabai was examined by Dr.Ashok Giri and certified that she was in a fit condition to give her statement, her statement / dying declaration (Exhibit­34) was recorded by PW­3 Kamble. The said statement was forwarded to Hingoli Rural Police Station and on the basis of the same, an offence at Crime No.15/2005 for an offence punishable u/s 307 of the Indian Penal Code, was registered against the present appellant. b) Investigation of the said crime was entrusted to PW­13 Rameshwar Rodge. The appellant was put under arrest on 10.02.2005 vide arrest Panchanama (Exhibit­58). Thereafter spot Panchanama (Exhibit­37) was drp {3} Cri. Appeal No.105/2009 drawn and from the scene of offence pieces of burnt sari, peticot, ash, empty kerosene can and match box were seized. Thereafter, statements of certain witnesses were recorded. Subsequently, one more dying declaration (Exhibit­46) of the injured was recorded by Santosh Bothikar PW­11, after complying with the necessary formalities. c) Ramabai succumbed to the burn injuries on 19.02.2005. Inquest Panchanama (Exhibit­28) was drawn on the dead body. The offence registered u/s 307 of the Indian Penal Code was converted into an offence punishable u/s 302 of the Indian Penal Code. Dr.Satyanarayan Pumpale, PW­10 performed the Post Mortem. During the Postmortem, the medical officer noticed following injuries. 1. Chest and abdomen was burnt 4% 2. Back was burnt 14% 3. Left upper limb was burnt 4% 4. Right lower limb was burnt 16% 5. Left lower limb was burnt 16% 6. Peninim was burnt 1% According to the medical officer, the burns were superficial to deep showing yellowish green discolouration drp {4} Cri. Appeal No.105/2009 with flecks of foul smelling pus. According to him, the cause of death is septicemic shock. Accordingly, Postmortem report (Exhibit­47) was prepared. d) During the investigation the seized articles were sent for chemical analysis along with the forwarding letter. After completion of the investigation, charge sheet was filed against the accused before the JMFC, Hingoli, who in turn committed the trial to the Cort of Sessions, Hingoli. e) It appears that Additional Sessions Judge, Hingoli framed charge (Exhibit­19) against the appellant for an offence punishable u/s 302 of the Indian Penal Code, to which the appellant pleaded not guilty and claimed to be tried. It also appears that to substantiate the charge levelled against the appellant, the prosecution had examined in all 13 witnesses, including – PW­1 Ganesh Alewar­Police Head Constable who had prepared the inquest Panchanama (Exhibit­28) and had forwarded to Vazirabad police station along with the provisional death certificate (Exhibit­29); PW­2 Dilip Bhise­Panch Witness to inquest Panchanama (Exhibit­28); PW­3 Pandurang Kamble­PHC, who had recorded the dying declaration (Exhibit­34); PW­4 Kundlik Bhise­father of the deceased; PW­5 Sheshrao Ingoli­Pancha witness to spot Panchanama (Exhibit­37); PW­6 Janabai Bhise­mother of drp {5} Cri. Appeal No.105/2009 the deceased; PW­7 Varsha Bhise­neighbour; PW­8 Dhondiba Bhise­brother of the deceased­ Varsha and Dhondiba claim themselves to be the eye witnesses to the alleged incident; PW­9 Balaji Ingole­Neighbour of the victim, who had allegedly caught the appellant while he was trying to flee; PW­10 Dr.Satyanarayan Pumpale­who had performed the Postmortem; PW­11 Santosh Bothikar­ who had recorded dying declaration Exhibit­46, PW­12 Dr.Ashok Giri­ the Medical Officer, civil hospital, Hingoli who had put endorsements on both the dying declarations of Ramabai and PW­13 Rameshwar Rodge­the Investigating Officer. f) It appears that the trial court accepted the two dying declarations (Exhibit­34 and Exhibit­46) coupled with the evidence of the alleged eye witnesses and evidence of Baliji Ingole, who had caught hold of the appellant while he was trying to flee from the spot and convicted the appellant for an offence punishable u/s 302 of the Indian Penal Code. The said judgment is impugned in the present appeal. 3. Before considering the rival submissions it is necessary to advert to the evidence of material witnesses examined before the trial court. drp {6} Cri. Appeal No.105/2009 4. It is in the evidence of PW­3 Pandurang Kamble that on 09.02.2005 he was on duty at Civil Hospital Police Chowki. At about 7.00 p.m. on receipt of MLC that Ramabai was admitted in burn ward on account of sustaining burn injuries, he had been there, where Ramabai was introduced to him by Dr.Giri. After Ramabai was examined by Dr.Giri, he recorded the statement of Ramabai (Exhibit­34). It further transpired from his evidence that on his inquiry Ramabai had given her name and address and had informed that at about 5.00 p.m. her husband had questioned her as to why she was not paying Rs.500/­ for his expenses and as she was unable to pay the same, he poured kerosene on her person and had set her ablaze. After dying declaration (Exhibit­34) was recorded it was read over to her, which she admitted to be true and correct and had signed the same. Thereafter, he had forwarded the same to the Rural Police Station, Hingoli and had also requested the Tahsildar to record the statement of Ramabai. It transpired from his cross examination that he had obtained the endorsement of Dr.Giri immediately after recording the statement. He has stated that he had recorded the dying declaration within 20 minutes. According to him, both the hands of the victim were in burnt condition. He has further stated that Tahsildar did not come in his presence. After recording of the statement, immediately he had left the ward. No ointment was applied to the hands of the victim. According to him, the relatives of Ramabai were not present at the time of recording of her statement. drp {7} Cri. Appeal No.105/2009 5. It transpired from the evidence of PW­11 Santosh Bothikar that on 09.02.2005, he received a letter from police station to record the statement of Ramabai. Accordingly he went to Civil Hospital and contacted the Medical Officer and after the Medical Officer endorsed that Ramabai was in a fit condition to give the statement, he recorded her statement (Exhibit­46). According to him, on his inquiry, Ramabai had informed him that on 09.02.2005 her husband­appellant demanded Rs.500/­ and as she was unable to pay the same, the appellant assaulted her on that count and closed the door of the house and set her ablaze by pouring kerosene on her person. One Sangita Gaikwad and others admitted her in civil hospital. According to him, after he recorded the dying declaration, contents of the same were read over to Ramabai to which she admitted to be true and correct and he had obtained her signature on the statement (Exhibit­46). According to him, he recorded the dying declaration in between 8 and 8.30 p.m. It transpired in the cross examination that he was appointed as an Executive Magistrate vide appointment order (Exhibit­47). He has admitted that in the said appointment order his name was not mentioned as he was appointed as Executive Magistrate. According to him, he received the requisition letter from the police station at about 6.30 p.m and he reached in the hospital at about 7.45 p.m. Ramabai was introduced to him by the police. Some persons were present near Ramabai, to whom he asked to go out and at 7.30 p.m. he gave a request letter to the on duty medical officer and then recorded the dying declaration as given by the injured. drp {8} Cri. Appeal No.105/2009 According to him the medical officer had put an endorsement on the dying declaration after he had examined Ramabai. 6. It transpired from the evidence of PW­8 Dhondiba Bhise, a younger brother of the deceased, who is a child witness, that on the day of the incident, he was staying at his village Ambala. He was present in his house along with his sister Ramabai (Deceased). His mother had went to field. The appellant had also left for his village, however had returned back within a short time. The appellant had asked him to bring a match stick and therefore, he had been to the house of PW­7 Varsha, who had given him two match sticks. He came back and saw that the door was closed and hence he knocked the door, however it was not opened. Then he went to the back side of the house of Varsha. Varsha followed him. He saw flames in the court yard of his house. He shouted for help and on hearing his shouts, Sangita and Dashrath came there and saw Ramabai in burning condition. Villagers had gathered there. Accused tried to run away. He saw that accused had put grass and kerosene on Ramabai and had set her ablaze. He saw the incident from the space of the door. According to him, in the morning, the appellant ha demanded Rs. 500/­ from Ramabai, who had no money and hence had refused and, therefore, the appellant had assaulted her. He has stated in the cross examination that the appellant is the resident of village Bhagwati. Omissions are proved in his cross examination that he has not stated in the statement before police that the appellant drp {9} Cri. Appeal No.105/2009 had put grass and kerosene on the person of Ramabai and had set her ablaze, which he had seen from the space of the door. Omission is also proved that he had not stated in his statement before the police that he had seen from the house of Varsha that the appellant ran away by jumping the fencing. He has also not seen face of the appellant while he was running. He has admitted that he does not remember the time as to when he brought the match sticks from the house of Varsha. 7. It is in the evidence of PW­7 Varsha, who claimed herself to be an eye witness, that on the date of the incident, i.e. on 09.02.2005, she was present at her house. She has stated that the appellant and Ramabai were present in the house of PW­4 Kundlik Bhise. The appellant had demanded Rs.500/­ for his expenses from Ramabai. The appellant was suspecting the character of Ramabai. The appellant thereafter proceeded to his village. Mean time, mother of Ramabai also went to field. After some time the appellant returned back and asked PW­8 Dhondiba to bring match stick from the house of his brother. Then he had slapped PW­8 Dhondiba. Thereafter, Dhondiba had came to her house to collect match stick. She had given two match sticks to Dhondiba. Thereafter Dhondiba had proceeded to his house, however, as the door was closed, he returned back to her house. There is fencing between the court yard of her house and the house of Kundlik Bhise, where the incident had occurred. Dhondiba went running to the Courtyard and therefore, she had followed him. She had seen drp {10} Cri. Appeal No.105/2009 that the clothes on the person of Ramabai had caught fire and she was in the backyard. She started shouting and on hearing her shouts Sangita and Dashrath had came there. Dashrath had extinguished the fire with the help of a quilt. At that time the appellant jumped from the fence and ran away. Ramabai was shouting to catch the appellant. After some time, villagers had gathered there and had caught the appellant. The appellant was handed over to police Patil. In the cross examination omissions are proved that she has not stated in her statement before police that the appellant had slapped Dhondiba, Ramabai was shouting to catch the appellant, villagers had caught the appellant and handed him over to the Police Patil and that she saw that the clothes on the person of Ramabai had caught fire and from the fence, she also saw the gunny bag and kerosene can in burning condition. According to her, the alleged incident took place at about 4.30 p.m. She has not stated as to why she followed Dhondiba when he went running to the Courtyard. 8. It transpired from the evidence of PW­6 Janabai­ mother of the deceased that the appellant had married with Ramabai 6/7 months prior to the incident. As the appellant was assaulting Ramabai on suspicion of her character, her husband PW­4 Kundlik had brought Ramabai back to her house and the appellant was sent to his house. On the day of the incident, the appellant had demanded Rs.500/­ from Ramabai. According to her, at the time of the incident, she had been in the field and one drp {11} Cri. Appeal No.105/2009 Vilas had informed her that Ramabai had sustained burn injuries and therefore, she came to her house and saw that Ramabai had sustained burn injuries. She, with the help of villagers, had shifted Ramabai to the hospital. Ramabai had informed her that the appellant had poured kerosene on her person and had set her on fire as he was suspecting her character and was assaulting her on that count. Omissions are proved in cross examination that she has not stated in the statement before police that her husband had brought Ramabai back to her house. She has also not stated in the statement before the police that the appellant had demanded Rs. 500/­ from Ramabai. She has also not stated in the statement before the police that in the hospital, Ramabai had told her that the appellant had demanded Rs.500/­ from Ramabai and had poured kerosene on her person and set her ablaze. She has also admitted that she and her husband tried to convenience the appellant, however she was unable to give the date as to when they had tried to convenience the appellant. She has further admitted in the cross examination that she, along with Santiga, appellant and police Patil, took Ramabai to Hongoli from where Ramabai was shifted to Nanded. She has further admitted that she was present in the hospital when police had recorded the statement (Exhibit­34). She has further admitted that she was not aware as to whether statement of Ramabai was recorded by Tahsildar in the hospital or not. She has also admitted that she and Sangita were present along with Ramabai in the hospital at Hingoli as well as at Nanded, through out. Evidence of PW­4 Kundlik Bhise is identical drp {12} Cri. Appeal No.105/2009 with that of PW­6 Janabai. 9. In this backdrop we have heard the submissions of the learned counsel appointed on behalf of the appellant and learned APP for the State. Learned APP supported the impugned judgment and urged to dismiss the appeal and confirm the conviction and sentence. 10. Learned counsel for the appellant has urged that no reliance can be placed on the dying declarations (Exhibit­34 and Exhibit­46). It is further urged that no reliance can be placed on the evidence of Dr.Giri on the point that he put endorsements on the dying declarations (Exhibit­34 and 46). It has to be noted that the dying declaration at Exhibit­46 was recorded between 8 and 8.30 p.m. whereas dying declaration at Exhibit­34 was recorded prior to the recording of dying declaration at Exhibit­46. Endorsements put by Dr.Giri, on both the dying declarations i.e. Exhibit­34 and Exhibit­46 clearly indicate that these endorsement were made at 9.00 p.m. while the dying declaration at Exhibit­34 was recorded at about 7.30 p.m. and dying declaration at Exhibit­46 was recorded between 8 and 8.30 p.m. If these dying declarations are recorded at the time mentioned thereon and if the endorsement is put by Dr.Giri that he had examined the patient at 9.00 p.m. then the evidence of Dr.Giri that he was present at the time of recording of the dying declarations Exhibit­34 and Exhibit­46 and had examined Ramabai before recording of her drp {13} Cri. Appeal No.105/2009 statements, cannot be accepted. Apart from it, Exhibit­47, tendered by PW­11 in his evidence clearly indicates that at the material time he was not empowered to record the dying declaration. Secondly, in view of the evidence of PW­6 Janabai that she and Sangita were present with Rambai throughout when the dying declarations were recorded and considering the variance in the statements of PW­3 and PW­11, the authenticity of the dying declarations recorded by them, cannot be accepted as the true version given to them by Ramabai. Therefore, it is urged to discard the two dying declarations at Exhibit­34 and 46. It is also urged that evidence of PW­3 does not demonstrate that before recording the dying declaration (Exhibit­34), he had satisfied himself that Ramabai was in a condition to give statement. 11. After excluding the written dying declarations (Exhibit­34 and Exhibit­46) it is required to assess the oral dying declaration of Ramabai allegedly given to her father PW­4 Kundlik and mother PW­6 Janabai. It is brought on record that the oral dying declarations are proved omissions in their statements before the police. Therefore, the evidence of PW­4 Kundlik and PW­6 Janabai on the point of oral dying declaration given by Ramabai before them, cannot be accepted. 12. It is also necessary to consider the evidence of alleged eye witnesses i.e. PW­8 Dhondiba and PW­7 Varsha. Evidence of PW­8 Dhondiba cannot be accepted as evidence of an eye witness drp {14} Cri. Appeal No.105/2009 from the proved omissions that he has not stated in the statement before police that he had seen the appellant putting grass and kerosene on the person of Ramabai and had set her on fire. At the same time, after Dhondiba collected the match sticks from Varsha and had went to his house and returned back to the house of Varsha at that time, Varsha was preparing food and hence there was no reason for her to follow Dhondiba to the Courtyard of the house of PW­4 Kundlik. Her conduct appears to be unnatural. In the premise, evidence of the alleged eye witnesses Dhondiba and Varsha, cannot be accepted as the evidence of the eyewitnesses, when Dhondiba has not informed anything to Varsha that he had seen anything abnormal due to which Varsha was forced to follow Dhondiba to the Courtyard where the incident has take place. It also requires to be considered that the alleged incident took place in the courtyard of the house of PW­4 Kundlik where there is fencing in between. There was no gate to the said fencing. In the circumstances, unless either Dhondiba or Varsha cross the said fencing the internal scenario could not be visible to them. Considering this aspect, evidence of alleged eye witnesses, Varsha and Dhondiba, also requires to be discarded. 13. Taking into consideration the submission advanced by learned counsel appointed on behalf of the appellant, it is clear that the evidence to link the guilt of the appellant on the basis of dying declarations (Exhibit­34) recorded by PW­3 Kamble and Exhibit­46 recorded by PW­11 Bothikar, is not acceptable. drp {15} Cri. Appeal No.105/2009 Likewise, the oral dying declaration given by the deceased to her father PW­4 Kundlik and mother PW­6 Janabai, is also not free from doubt. Evidence of alleged eye witnesses, PW­7 Varsha and PW­8 Dhondiba is also not believable evidence. Taking into consideration all these aspects and considering the cause of death, as opined by PW­10 Dr.Satyanarayan that Ramabai died due to septicemic shock and not suggests that the septicemia was aggravated due to the burn injuries, it cannot be said that the death of Ramabai is a homicidal one and the appellant is the author of her death. On overall re­appreciation of the evidence, we are of the considered view that the evidence on record is not sufficient to hold the appellant guilty for the offence with which he is charged, as the evidence on record is not reliable. In the premise, the appellant is entitled for the benefit of doubt. Consequently, the appeal deserves to be allowed. 14. Appeal is allowed and the conviction and sentence of the appellant is hereby quashed and set aside, and he is acquitted of the offence for which he was charged and convicted. Fine, if paid by the appellant, be refunded to him. Since he is in jail, he be released forthwith, if not wanted in any other case. Fees payable to Mr.N.B.Suryawanshi, learned counsel appointed on behalf of the appellant, quantified at Rs.5,000/­ [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B10/criapel105­09