CR.A.317/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.317 OF 2010 Date of decision:16/8/2011 For approval and signature HON'BLE MR.JUSTICE A.H.JOSHI HON'BLE MR.JUSTICE A.R.JOSHI 1. Whether the Reporters of Local Papers Yes may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? Private Secretary AGP/office/317-10cr.a CR.A.317/2010 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.317 OF 2010 Anjanabai Shriram Pawar, Age 60 yrs., R/o. Nagarkhana Kumbhar Galli, Jamner, Tq.Jamner, Dist. Jalgaon. Presently in custody in Yerwada Central Prison, Yerwada, Pune. ...APPELLANT (Ori.Accused No.1) VERSUS The State of Maharashtra. ...RESPONDENT ... Mr.Rahul B.Bagul, Advocate for the appellant, absent. Smt. S.D.Shelke, APP for respondent State. ... CORAM: A.H.JOSHI & A.R.JOSHI, JJ. Date: AUGUST 16th, 2011 *** CR.A.317/2010 3 ORAL JUDGMENT: ( Per A.H.Joshi, J.) 1. This is an appeal by the accused who has been convicted for the offense punishable under Section 302 of IPC for life imprisonment and fine, etc. 2. None for the appellant. Heard learned A.P.P. for the State. Perused the record. 3. The appellant/accused Anjanabai Shriram Pawar was tried along with accused No.2 Bhagwan Shriram Pawar for the offense punishable under Section 498-A read with Section 34 of IPC and Section 302 read with Section 34 of IPC, for ill- treating Pramila, wife of accused No.2, over dowry related demands and, ultimately, setting her to fire by pouring kerosene on her person, on 13.9.2004. 4. Pramila died after two days after the incident while in the hospital. She had suffered 97 per cent medium to deep burn injuries. The cause of her death is shock due to burn injuries. 5. Prosecution has examined in all six witnesses. CR.A.317/2010 4 6. PW No.1 is Panch witness; PW No.2 is Police Sub Inspector who has recorded dying declaration (Exh.18) and the PW No.3 is the Special Executive Magistrate who has recorded dying declaration (Exh.21). PW 5 is the Investigating Officer. PW No.6 is the Medical Officer who has treated deceased Pramila and certified her to be fit at the time of recording dying declaration. 7. PW No.4 is brother of the deceased whose testimony is relied upon to prove the charge under Section 498-A, and the oral dying declaration allegedly given by the deceased Pramila while on bed in the hospital. 8. Perusal of testimony of PW No.4 disclosed the following: (1) Suggestion of ill-treatment. (2) Pramila was unwilling to go to matrimonial house. (3) After she had gone to matrimonial house, she was not allowed to return. (4) The economic position in the matrimonial house was discouraging and she had no CR.A.317/2010 5 means even to buy the grains. (5) Her brother-in-law and sister-in-law and husband all used to ill-treat her. 9. In the First Information Report and in the charge-sheet, however, the prosecution couched a story that the deceased was not liked by her in-laws as she did not have fair complexion, etc. 10. No evidence whatsoever is brought on record by the prosecution in the form of primary and direct evidence to prove that the deceased was ill-treated over dowry related demand. 11. In so far as the aspect of cause of death, being act of accused no.1 in setting the deceased to fire by pouring kerosene on her, the version contained in the dying declaration recorded by PW No.2, which is at Exh.18 is concerned, the story reveals as follows: "On or about 3 a.m. on 13th Sept.,2004, she entered the house as she had woken up, the mother-in-law poured kerosene on her person, snatched a match box in her hands and set her on fire. Her husband and persons standing thereby CR.A.317/2010 6 extinguished the fire by putting on her person a quilt. She was, thereafter, taken to hospital at Jamner. From there, she was taken by her brother to a hospital at Jalgaon. Because she did not have fair complexion or, was rather dark, her husband and mother-in-law ill-treated her and ultimately, set her to fire." 12. In the dying declaration ( Exh.21) recorded by the Magistrate at about 8.30 a.m. i.e. later in point of time to the dying declaration recorded by the Police Inspector, she has disclosed as follows: " She was alone in the house, her mother- in-law poured kerosene on her person and set her to fire. She shouted, neighbours and her husband came and extinguished the fire". 13. The Investigating Officer is examined as PW No.5 ( Exh.23). In the cross examination, he denies the suggestion that he has not recorded the statement of other witnesses. 14. It is evident from the version contained CR.A.317/2010 7 in both the dying declarations that, apart from her husband, other persons had come on the spot who assisted her husband in extinguishing the fire or the husband extinguished the fire with the assistance of other witnesses. 15. The prosecution has not brought on record as to who were these persons and how they had assisted in extinguishing the fire. Moreover, the sole Panch witness PW No.1 had turned hostile. 16. Dying declaration could be relied upon if proved and it is above suspicion. In the present case, on what is proved by the prosecution number of witnesses were present. It is not the prosecution case that no other witnesses, though present, were not available for examination before the Court. The failure of prosecution to cite and examine the witnesses who had occasion to observe Pramila ablaze and their having extinguished the fire, who were the best witnesses, is fatal to prosecution case. These were the persons to whom Pramila was ordinarily bound to disclose the reasons as to how she caught fire or was set to fire. CR.A.317/2010 8 17. Failure of prosecution to explore and bring before the Court such witnesses or disclose to the Court the circumstances in which such witnesses were not available for examination, renders the prosecution story that accused no.1 had set her ablaze, engrossed by suspicion and hence risky to be believable. 18. Moreover, if the complexion of the case is such that, the prosecution was initially couched with a story that the accused together had set the deceased on fire with common intention and for motive to settle another marriage of accused no.2, now, the prosecution wants this Court to believe that the accused no.1 alone was against Pramila and had set her on fire while accused no.2 has tried to save her. The prosecution story is thus rendered doubtful. 19. Learned Sessions Judge has declined to believe the prosecution story that accused No.2 as well was involved, and on the same evidence held that the accused no.1 alone had set her to fire. What was the role of the accused No.2 came under grave suspicion, and to us, as much suspicion existed about the role of accused No. 2, equally arises about the role of accused no.1. CR.A.317/2010 9 20. In the given situation, this Court is inclined to hold that the first dying declaration which holds the accused No.1 guilty and second dying declaration which holds accused Nos. 1 and 2 to be the guilty, both dying declarations come under serious cloud of doubt on account of lack of consistency, jointly with the fact that the presence of other witnesses though admitted, are not before the Court. 21. In the result, appeal succeeds, as in our view, the prosecution has failed to prove guilt of the accused No.1 beyond shadow of doubt. 22. Therefore, the appeal is allowed. The judgment and order of conviction and sentence is set aside. The appellant be set at liberty unless required in any other offense. (A.R.JOSHI, J.) (A.H.JOSHI,J.) ... AGP/317-10cr.a