- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.741/2008 Pratap s/o Narayan Mahajan, age 36 yrs., occu.labourer, r/o Near Maruti Madhi, Erandol. Dist.Jalgaon. ...Appellant.. (Org.accused) Versus The State of Maharashtra. ...Respondent... ..... Shri V.B. Patil, Advocate for appellant. Shri D.R. Kale, APP for respondent. ..... CORAM: P.V. HARDAS & A.V. POTDAR , JJ. DATE: 08.09.2010 ORAL JUDGMENT (Per P.V. Hardas, J.) : 1] The appellant, who stands convicted for an offence punishable u/s 302 and 498-A of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.500/- with a default stipulation of undergoing further rigorous imprisonment for three months in the event of non-payment of fine, and rigorous imprisonment for one year and fine of Rs.500/- in default to undergo rigorous imprisonment for three months in the event of non-payment of fine, by the Ad Hoc Additional Sessions - 2 - Judge-1, Jalgaon, by judgment dated 27.8.2008, in Sessions Case No.94/2007, by this appeal questions the correctness of his conviction and sentence. 2] Such of the facts as are necessary for th decision of this appeal may briefly be stated thus. PW 9 Rajiv Talekar, who was attached to the Zilla Peth Police Station, Jalgaon, received a message on telephone from the Civil Hospital, Jalgaon, about the admission of one lady by name Kusumbai with burns. He accordingly proceeded to the Civil Hospital, Jalgaon, and contacted the Medical Officer on duty and along with him went to the ward where Kusumbai was admitted. He ascertained from the Medical Officer about the condition of Kusumbai to give her statement and on doctor certifying that Kusumbai was in a fit mental condition to give her statement, recorded her statement at Exhibit 28. The aforesaid statement at Exhibit 28 was read over to Kusumbai and her thumb impression was obtained. Since the offence had been committed within the jurisdiction of Erandol Police Station, the papers accordingly were forwarded to Erandol Police Station after registering offence at Zero number at the Zilla Peth Police Station. PW 8 ASI Madhav Mahajan, who was attached to Erandol Police Station, received the papers i.e. dying declaration on 2.3.2007 and on the basis of the aforesaid statement of the injured, registered an offence vide Crime No.17/2007 u/s 307, 504 of the Indian Penal Code. Investigation of the said offence was handed over to PW 13 PSI Yashwant Battise. PW 13 PSI Battise, who was attached to Police Station, Erandol, received the necessary papers, proceeded to the scene of the - 3 - offence, which was the residential house of the appellant and Kusumbai and in the presence of PW 1 Samadhan, drew the scene of the offence – panchanama at Exhibit 10. From the scene of the offence, he seized burnt saree, burnt cloth pieces and burnt handkerchief and one small kerosene lantern. The aforesaid articles, which were seized under the scene of the offence – panchanama at Exhibit 10 are Articles 1 to 4. It appears that the accused came to be arrested vide arrest panchanama at Exhibit 11 and his clothes came to be seized. Since the accused had sustained burns, he was referred to PW 2 Dr.Talele, who was Medical Officer attached to the Primary Health Centre at Shendurni. On 2.3.2007, PW 2 Dr.Samir Talele examined the accused at 8-30 p.m. and noticed superficial burn injuries on his chest - size 5 x 4 cms. Necessary treatment was administered to him. The certificate regarding the injury sustained by the accused is at Exhibit 15. It also appears that the dying declaration of Kusumbai came to be recorded by PW 10 Ramlal Bramhane, Awal Karkun working in Tahsil Office, Jalgaon. On 2.3.2007, he had received a memo from the Zilla Peth Police Station for recording dying declaration of Kusumbai, who was admitted in the Civil Hospital. Upon receipt of memo at Exhibit 34, he proceeded to the Civil Hospital, Jalgaon, and after ascertaining her condition from the Chief Medical Officer, who was present in the hospital, recorded the statement of Kusumbai at Exhibit 35. 3] It appears that Kusumbai succumbed to her injuries and accordingly inquest panchanama at Exhibit 12 came to be drawn in the presence of panch witnesses. The dead body of Kusumbai was referred for post mortem examination and post - 4 - mortem came to be conducted by PW 4 Dr.Patil. PW 4 Dr.Jayant Patil noticed that the deceased Kusumbai had sustained first and second degree burns on her neck, whole of thorax, whole of right upper limb, anterior part of the left arm and upper part of lower back. Thus, Kusumbai had sustained 33% burns. He opined that cause of death was cardio respiratory arrest due to septicemia and fatty embolism due to 33% burns. The post mortem report is at Exhibit 20. Statements of relatives of Kusumbai came to be recorded and further to the completion of investigation, seized property was forwarded to the Chemical Analyser through PW 3 Police Head Constable Pankaj Sapkale. The clothes of the accused and deceased were tested positive for presence of kerosene vide the report of the Chemical Analyser at Exhibit 50. Upon completion of the investigation, a charge- sheet against the present appellant came to be filed. 4] On committal of the case to the Court of Sessions, charge vide Exhibit 5 came to be framed by the trial Court for offence punishable u/s 498-A, 302 and 504 of the Indian Penal Code. 5] The entire prosecution case rests upon three oral dying declarations alleged to have been made by deceased Kusumbai to PW 5 Thagubai – her aunt, PW 6 Namdeo – her father and PW 7 – Rukhmabai – her mother. The prosecution also relied upon the dying declaration recorded by PW 9 PSI Rajiv and PW 10 Executive Magistrate. In order appreciate and deal effectively with the submissions advanced before us by Shri V.B. Patil, learned counsel for the - 5 - appellant and learned APP for the State, it would be useful to refer to the evidence of the witnesses. 6] PW 5 Thagubai – aunt of deceased Kusumbai, states that Kusumbai had been married to the appellant about 20 years prior to the incident. She states about certain ill-treatment alleged to have been given by the appellant to Kusumbai under the influence of liquor. However, in her evidence, she does not give specific dates nor does she allege that at any time prior to the incident, the appellant had demanded any amount from Kusumbai and on failure of Kusumbai to pay the said amount, the appellant had ill-treated her. Similar is the evidence in respect of charge u/s 498-A of PW 6 Namdeo and PW 7 Rukhmabai. According to us, the evidence led by the prosecution is wholly insufficient for establishing the offence punishable u/s 498-A of the Indian Penal Code against the accused beyond reasonable doubt. The appellant, therefore, according to us, would be entitled to be given the benefit of doubt in respect of the said offence. 7] In respect of the injuries sustained by Kusumbai, she states that on 2.3.2007, she was present at her house and at about 2-00 to 2-30 p.m., she had learnt that Kusumbai had sustained burns and, therefore, went to her house. On going to her house, she had noticed that Kusumbai was wrapped in a bed sheet and was placed on a cot. She noticed that Kusumbai had sustained burns on her chest, abdomen and both hands. Soon her parents also arrived there and on seeing the condition of Kusumbai, her mother PW 7 Rukhmabai fell unconscious. - 6 - Thereafter, PW 5 Thagubai and sister in law of Kusumbai took her to the rural hospital at Erandol and on the advice of the Medical Officer, shifted her to the Civil Hospital at Jalgaon. Thagubai further states that in the Civil Hospital, Jalgaon, she enquired from Kusumbai as to how she had sustained the burns and Kusumbai is alleged to have told her that on the day of the incident i.e. on 2.3.2007, she had prepared food for her and her husband and was talking to her sister in law. The accused arrived there and questioned her as to why she was talking to her sister in law. Thereafter, quarrel ensued between Kusumbai and the appellant and the appellant threw kerosene from the small kerosene lantern on Kusumbai and set her ablaze by striking a match-stick. She states that her brother in law, her sister in law extinguished the flames by pouring water. According to Thagubai, after Kusumbai had narrated the manner in which she had sustained the burns, Thagubai went home. In her cross-examination, she has admitted that she had visited the house of Kusumbai and had seen television, fan, utensils and other articles in her house. She has admitted that from the beginning till Kusumbai was taken to the Civil Hospital, she was present near Kusumbai. 8] PW 6 Namdeo – father of deceased Kusumbai, states that marriage of Kusumbai was solemnised with the appellant in the year 1996 at Erandol. He too states about certain ill-treatment being given to Kusumbai immediately after the marriage on account of the addiction of the accused to liquor. In respect of the incident, he states that on 2.3.2007 at about 2-00 to 2-30 p.m., one Sarlabai had informed him that his daughter Kusumbai had sustained burns. On hearing the - 7 - said news, he along with his wife PW 7 Rukhmabai had rushed to the house of Kusumbai and had noticed Kusumbai being placed on a cot wrapped in a quilt. He states that on seeing the condition of Kusumbai, his wife Rukhmabai fell unconscious. Thereafter, Kusumbai was taken to the rural hospital and thereafter to the Civil Hospital. He states that after he had gone to the Civil Hospital, he was near his daughter an had enquired from her about the incident and Kusumbai is alleged to have told him about the incident. He states that Kusumbai had told him that on account of the fact that she was talking to her sister in law, the appellant was annoyed and quarrel ensued between the appellant and Kusumbai, and the appellant had poured kerosene on her from a small lantern and set her ablaze. Kusumbai also told him that the flames were extinguished by her brother in law and her sister in law. He states that on the next day, his statement came to be recorded by the Police. In cross-examination, he has admitted that his statement had been recorded after the disclosure made by Kusumbai. PW 7 Rukhmabai – mother of deceased Kusumbai, also deposes on similar lines. 9] PW 9 PSI Rajiv Talekar states about going to the Civil Hospital and recording the statement of Kusumbai. PW 10 Ramlal Bramhane, Executive Magistrate, also states about proceeding to the Civil Hospital pursuant to the memo at Exhibit 34 and recording the dying declaration of Kusumbai at Exhibit 35. 10] In the statement, which is treated as dying declaration at Exhibit 28, recorded by PW 9 Rajiv Talekar, Kusumbai states that the appellant was annoyed - 8 - on account of the fact that she was talking to her sister in law. The appellant had thereafter abused her filthily and had poured kerosene on her from the small lantern and had set her ablaze. In the dying declaration at Exhibit 35, Kusumbai states that her husband had come home after consuming liquor and had poured kerosene on her and had set her ablaze. Thus, in the two dying declarations, there is a great degree of variance in respect to the prelude to the incident and the incident itself. 11] Apart from variance in the two dying declarations, none of the scribes to the dying declaration have proved the contents of the dying declaration. The evidence of PW 9 Rajiv Talekar and PW 10 Ramlal Bramhane is to the effect that they had gone to the Civil Hospital and after ascertaining the condition of Kusumbai, had recorded her statement and had obtained her thumb impression. None of them state in their substantive evidence as to what Kusumbai had told them about the incident. At this juncture, it would be useful to refer to the judgments of the Division Bench of this Court in - [1] Deorao Sonbaji Bhalerao V/s State of Maharashtra ( 2008 ALL MR (Cri) 1921) [2] Jivan Tulsiram Dhavali V/s State of Maharashtra ( 2008 ALL MR (Cri) 2018) [3] Laxmibai Maruti Satpute V/s State of Maharashtra ( 2010 ALL MR (Cri) 182) [4] Faizal Mohammed s/o Abdulla Banaim V/s State of Maharashtra (2010 ALL MR 2241) - 9 - The Division Bench, in the aforesaid judgments, has held that it was incumbent on the scribe to prove the contents of the dying declaration. In other words, it was incumbent for the scribe to state in his substantive evidence as to what was narrated to him by the injured in respect of the injuries sustained by the injured. In the absence of such evidence, the Division Bench has held that the dying declaration does not stand proved. The ratio of the aforesaid judgments is squarely applicable to the facts of the present case. In the present case, none of the scribe to the two written dying declarations have deposed about what was narrated to them by the injured. In that background, therefore, according to us, the written dying declarations deserve to be rejected. 12] The only evidence, therefore, in respect of an offence punishable u/s 302 of the Indian Penal Code is the oral dying declaration alleged to have been made by Kusumbai to PW 5 Thagubai, PW 6 Namdeo and PW 7 Rukhmabai. PW 5 Thagubai states that when Kusumbai had narrated the incident to her, the parents of Kusumbai were present in the hospital. None of the witnesses show the presence of each other when Kusumbai is alleged to have narrated the incident. Apart from that, no steps had been taken either by PW 5 Thagubai, PW 6 Namdeo or PW 7 Rukhmabai, who informed the Police in respect of what was narrated by Kusumbai. The stoic silence of the witnesses clearly belies that any narration, much less the narration as claimed by them, was made by injured Kusumbai. We are, therefore, not inclined to place any reliance on the oral dying declaration alleged to have been made by Kusumbai to PW 5 Thagubai, PW 6 Namdeo and - 10 - PW 7 Rukhmabai. 13] After appreciating the evidence of the prosecution, according to us, the prosecution has failed in establishing that the appellant had poured kerosene on his wife Kusumbai and had set her ablaze. The witnesses, who had doused the flames on Kusumbai, have not been examined by the prosecution. No disclosure is alleged to have been made by Kusumbai immediately after sustaining the burns. Prior to the recording of the written dying declarations, her relatives are alleged to be present in the hospital with her. In such circumstances, therefore, according to us, no reliance whatsoever can be placed either on the two written dying declarations or on the oral dying declaration. In the absence of any evidence, therefore, according to us, the appellant is entitled to be given the benefit of doubt. 14] For the aforesaid reasons, the appeal is allowed. Conviction of the appellant for offence punishable u/s 498-A and 302 of the Indian Penal Code is hereby quashed and set aside. The appellant is acquitted of the offences with which he was charged and convicted. Fine, if paid by the appellant, be refunded to him. Since the appellant is in jail, he be released, if not wanted in any other case. (A.V. Potdar , J.) (P.V. Hardas, J.) ndk/cr891010