Cr.Appeal/256/1996 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 256 OF 1996 The State of Maharashtra ..Appellant VERSUS 1. Jagannath Chindha Jagtap, Age 35 years, 2. Sahebrao Chindha Jagtap, Age 25 years, 3. Nandabai w/o Jagannath Jagtap, Age 30 Years, All residents of Rajiv Gandhi Nagar, Dhule City, Dist.Dhule ..Respondents ... Advocates appearing for : Appellant : Shri N.B.Patil, APP Respondents : Shri N.P.Deshmukh h/f Shri R.M.Deshmukh ... CORAM : A.H.JOSHI & A.R.JOSHI, JJ. Dated : August 22, 2011 ORAL JUDGMENT : (Per A.R.Joshi, J.) :- 1. The State of Maharashtra had preferred the present appeal challenging the judgment and order of acquittal, passed on 3.8.1992, by the learned V Additional Sessions Judge, Dhule in Sessions Case No.44 of 1992. Cr.Appeal/256/1996 2 2. In Sessions Case No.44 of 1992, three accused were tried for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code ("IPC" hereinafter). Finding the evidence led by the prosecution, deficient, the learned Sessions Judge gave benefit of doubt to all the three accused and acquitted them of the offence of murder. 3. Prior to analysing the rival submissions, the case of the prosecution and material placed before the learned Sessions Judge can be summarised as under :- 4. The accused persons and deceased Smt. Sindhubai Pandit Sonavane were the neighbours residing in the adjoining houses having a small strip of land in between the two houses. Victim Sindhubai was residing along with her husband Pandit Sonavane. On the relevant day i.e. on 27.1.1992, at about 7.30 to 8.00 p.m., there was some quarrel ensued between victim Sindhubai and accused Nos.1 to 3. The quarrel was on account of earlier dispute and some case lodged against accused Nos.1 and 2 by victim Sindhubai. Accused Nos.1 and 2 threatened victim Sindhubai of dire consequences, if she would not withdraw the complaint lodged by her. Cr.Appeal/256/1996 3 There was a sort of scuffle between accused Nos.1 and 2 on one hand and victim Sindhubai on the other hand. That time, accused No.3 came there and joined accused Nos.1 and 2. Accused No.3 brought a can containing kerosene. Accused Nos.1 and 2 caught hold of victim Sindhubai and accused No.3 poured kerosene on her person. All the three accused set victim Sindhubai on fire. Sindhubai cried for help but nobody came forward to her rescue. After sometime, one neighbour PW 3 Satav Shinde came there and tried to extinguish the fire. By that time PW 5 Pandit, husband of victim Sindhubai, also arrived there and tried to rescue his wife. In that incident, apparently, PW 5 Pandit was also assaulted by the accused persons and he became unconscious. After sometime, police party arrived at the spot on knowing the incident. Then the injured Sindhubai was taken to Civil Hospital, Dhule. 5. When injured Sindhubai was under treatment at Civil Hospital, Dhule, on the same day of incident i.e. on 27.1.1992, her statement was recorded by PSI Badgujar (PW 6). It was treated as first information report, which is at Exhibit 35. On the strength of the said complaint, offence was registered against all the Cr.Appeal/256/1996 4 three accused for the offence punishable under Section 307 read with Section 34 of IPC. Again, on the same day, in immediate proximity of the first statement, second dying declaration of injured Sindhubai was recorded by the Executive Magistrate Shri Anil Suryavanshi (PW 1). It is at Exhibit 24. 6. During investigation, usual procedure was adopted as to conducting the spot panchanama and recording of statements of the witnesses etc. PW 5 Pandit, husband of victim Sindhubai was also referred to Civil Hospital, Dhule and a medical certificate (Exhibit 14) was obtained, regarding injuries sustained by him. 7. While under treatment, for about 77 per cent burn injuries, victim Sindhubai succumbed to the injuries after about ten days i.e. on 8.2.1992. Inquest panchanama was drawn so also post mortem examination was conducted. On the death of victim, offence punishable under Section 302 of IPC was inserted in the charge sheet. 8. During investigation, various articles seized Cr.Appeal/256/1996 5 from the spot, clothes of victim and the can containing liquid were sent for chemical analysis and Chemical Analyser's reports were obtained. 9. On completion of investigation, charge sheet was filed and matter was committed to the Court of Sessions and was finally heard and decided by the learned Additional Sessions Judge, which terminated in the acquittal of all the three accused. 10. Needless to mention that the scope of the appellate Court in the appeal against acquittal is rather limited and mainly it is to be seen whether the impugned judgment and order is so perverse that it needs interference. This position is required to be borne in mind while deciding the present appeal against acquittal. 11. After going through the substantive evidence produced before the learned Sessions Court of six prosecution witnesses and mainly the substantive evidence of PW 1 - Executive Magistrate, PW 6 - Police Officer and PW 4 - attending Doctor, who ascertained the position of the victim prior to recording of her Cr.Appeal/256/1996 6 dying declaration, it is ascertained that what was weighed with the learned Additional Sessions Judge was the discrepancies between the two dying declarations - Exhibit 35 first information report and Exhibit 24 recorded by PW 1 - Executive Magistrate. We have also perused the reasoning given by the learned Sessions Judge about the authenticity of the dying declaration, inasmuch, prior to dying declaration Exhibit 24, admittedly, some relatives were present with the deceased, though at the time of actual recording of the dying declaration, according to PW 1 Executive Magistrate, no such relative was present. It is further noticed that Exhibit 24 and even another dying declaration Exhibit 35 are not in question and answer form. Moreover, both the dying declarations do not bear any time, at which they were recorded and it was not made clear before the learned Sessions Judge by the prosecution at the trial, as to which of these two dying declarations was recorded first in point of time. The learned Sessions Judge has also observed that as per the contents of Exhibit 35 - the dying declaration which was treated as first information report, there was a specific statement by the victim that nobody came forward to rescue her, much less, the Cr.Appeal/256/1996 7 presence of her husband PW 5 Pandit. As against this, it is substantive evidence of PW 5 Pandit that he tried to rescue his wife and in that process, he also sustained the burn injuries and also he was assaulted by the accused persons. As against this, perusal of his medical certificate (Exhibit 14) reveals that there were no burn injuries to this patient. He had suffered only the abrasions. Moreover, according to PW 5 Pandit, when he was assaulted by the accused persons, he became unconscious and did not witness as to how his wife was set on fire. As such, admittedly, he is not an eye witness. 12. It is also observed that PW 3 Satava Shinde, who was the alleged eye witness, did not support the case of the prosecution and this fact also weighed with the learned Sessions Judge while doubting the case of the prosecution as involvement of the accused persons in the offence of setting the victim on fire. 13. Apart from the above, the learned Sessions Judge has also discussed regarding the alleged motive behind the said offence. It is observed by the learned Sessions Judge that the motive alleged against the Cr.Appeal/256/1996 8 accused by PW 5 Pandit is altogether different from the motive alleged against them in both the dying declarations. According to PW 5 Pandit, after hearing the quarrel between his wife and the accused persons, he went near his wife and saw that accused No.2 was assaulting his wife. When PW 5 intervened to rescue his wife, accused Nos.1 to 3 also assaulted him, thereby he became unconscious. According to him, the quarrel was on account of cutting of the branches of Babhul (Acacia) tree standing in the court-yard of said Pandit by the accused persons and on that count, his wife had accosted the accused persons and then the quarrel ensued. As against this, according to the dying declaration, there was a threat given by the accused persons to the victim asking her to withdraw the complaint lodged by her or otherwise to face dire consequences. This variance also weighed with the learned Sessions Judge while doubting the authenticity of the dying declaration, more so, in view of the discrepancy detailed above, so far as the presence of nobody to rescue the victim on the spot. 14. In the result, considering the evidence led before the trial Court being deficient, all the three Cr.Appeal/256/1996 9 accused were acquitted. On carefully considering the effect of substantive evidence of main prosecution witnesses i.e. PW 1 - Executive Magistrate, PW 4 - Doctor and PW 6 - Investigating Officer and also considering the hostility shown by PW 3 - an alleged eye witness, in our view, it cannot be said that the decision arrived at by the learned Additional Sessions Judge regarding acquittal of the accused is perverse. 15. In the result, since there is no merit in the present appeal, it stands dismissed. (A.R.JOSHI, J.) (A.H.JOSHI, J.) ... akl