[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.315 OF 2006 Rohit Murlidhar Trivedi ] Age about 30 years, ] residing at Room No.4, ] ChawlNo.37, Navjeen Nagar, ] Hariyali Village, Vikhroli ] (East) Mumbai 400083 ] At present undergoing the ] sentence imposed upon him ] at Kolhapur Central Prison ] Kolhapur ]..Appellant Vs. The State of Maharashtra ] (at the instance of ] Senior Inspector of ] Police, Vikhroli Police St. ] Vide their C.R.No.10/2003) ]..Respondents ... Mr.Nitin Sejpal Advocate with Ms.Pooja Bhojane Advocate for Appellant Mr.V.B.Konde-Deshmukh A.P.P. for the State ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : APRIL 23/24, 2008 DATE : APRIL 23/24, 2008 DATE : APRIL 23/24, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The appellant-original accused has challenged the judgment and order dated 30/31.1.2006 passed by the learned Additional Sessions Judge, Greater Bombay in Sessions Case No. 394 of 2003. By the [-2-] said judgment and order, the learned Sessions Judge convicted the appellant for the offence under Section 452 and he was sentenced to RI for three years and to pay a fine of Rs.10,000/- in default RI for ten months. The appellant was also convicted for the offence under Section 304-II of IPC for commission of culpable homicidal death of Hansabai and he was sentenced to undergo RI for five years and fine of Rs.20,000/- in default RI for 20 months. The appellant was also convicted for the offence under Section 304-II of IPC for commission of culpable homicidal death of Pushpa and he was sentenced to undergo RI for five years and fine of Rs.20,000/- in default RI for 20 months. 2. The prosecution case briefly stated is as under: . Pushpa was residing with her mother Hansabai and her father PW 1 Vitthal Jagdale at Room No.2 Chawl No.37, Navjivan Nagar, Vikhroli (E), Mumbai. The accused was residing in the same chawl in Room No.4. The family of the complainant and the family of the accused were known to each other. It is the [-3-] prosecution case that accused was in love with Pushpa. However, the said love was one sided. Due to this, on 17.1.2003 at about 7.45 p.m. when Hansabai was cooking Chapatis on the stove and her daughter Pushpa was standing near her mother, at that time, accused entered into house and poured petrol on Pushpa. The stove flared up and both Pushpa and Hansabai caught fire. Hansabai sustained 95% burns and Pushpa sustained 75% burns. They were rushed to the hospital. PW 1 Vitthal Jagdale lodged the FIR. Hansabai expired on 19.1.2003. Pushpa expired on 21.1.2003. 3. Charge came to be framed against the appellant for the offence under Sections 452 and 302 of IPC for causing death of Hansabai and Pushpa. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that he was in love with Pushpa. At the time of incident, he was sitting in the house of Pushpa. There was blast of stove. Pushpa and her mother Hansabai sustained burn injuries. The appellant also sustained burn injuries. They all were taken to the hospital. After going through the evidence adduced by the prosecution, the learned Sessions [-4-] Judge convicted and sentenced the appellant as stated in paragraph 1 above. Hence, this appeal. 4. There are no eye witnesses to the incident. The prosecution has mainly relied on the dying declarations made by Pushpa and Hansabai. The said dying declarations have been recorded by P.W.2 S.E.O. Godambe. The dying declaration of Pushpa is at Exh. 18 and dying declaration of Hansabai is at Exh.14. 5. At the relevant time, Pushpa was in the kitchen. In her dying declaration at Exh.18, Pushpa had stated that at the relevant time, her mother was cooking. Suddenly, someone threw water like substance on her body. The stove exploded and when she turned, she found that the appellant was standing there. Hansabai in her dying declaration (Exh.14) had stated that she was cooking on the stove, her daughter was sitting next to her, at that time, some liquid fell and stove exploded. When she turned, she saw that the accused was standing there. Besides these two dying declarations, prosecution has also relied on the evidence of P.W.5 Pratima Sahu who has stated that [-5-] she saw flames coming out of house of Pushpa. She saw one person coming out from the said house. When she made enquiries with Pushpa, Pushpa informed her that Rohit had burned them by pouring petrol upon them. Though Pratima has stated that she saw one person coming out of room in her examination in chief, she has stated that she could not see the face of the person who came out of the room. It may also be stated here that the statement of this witness was recorded by the police on 21.1.2003 i.e. about 4 days after the incident. 6. In addition to the oral dying declaration, prosecution has also relied on another oral dying declaration made by Pushpa to P.W.1 Vitthal who is her father. P.W.1 Vitthal has stated that he went to Rajawadi hospital and he made enquiries with his daughter Pushpa. Pushpa informed him that the accused had poured petrol on her body. She was present in the kitchen with her mother who was cooking on the stove. At that time, there was blast of stove and she and her mother Hansabai caught fire. According to this witness, motive for the incident was that the accused was in love with [-6-] her daughter Pushpa which was not reciprocated by Pushpa. 7. The prosecution has also relied on the evidence of P.W.4 Ujwal who has stated that on 17.1.2003 at about 7.30 p.m. she saw the accused standing outside his house. After some time, there was some blast and she heard some shouts. In my view, the evidence of this witness does not implicate the appellant as P.W.4 Ujwal was residing in the same chawl as the appellant and it would be normal and natural for the appellant to stand outside his house. Hence, the evidence of this witness would be of no help to the prosecution. 8. The learned Sessions Judge did not convict the appellant under Section 302 of IPC but convicted him under Section 304-II of IPC mainly on the ground that he had not set Hansabai or Pushpa on fire and the only role attributed to him was that he had poured petrol on Pushpa. At that time, as Pushpa was standing near her mother who was cooking on the stove, there was explosion of stove and both of them caught fire. In such case, the learned Sessions Judge held that the accused had no [-7-] intention to commit murder but at the most, he could be attributed with the knowledge that his act may lead to Pushpa and Hansabai catching fire. 9. Mr.Sejpal, the learned counsel for the appellant has submitted that actually it was a case of accidental burns being sustained by Hansabai and Pushpa and the accused has been falsely implicated in the present case by way of an after thought. In support of this contention, he has placed reliance on Exhibit-26 collectively, Exhibit-28, Exhibit-37 and evidence of P.W.6 Dr.Puja. 10. Exhibit-37 is an entry in the EPR Register maintained at Rajawadi hospital. The said EPR entry shows that Pushpa and Hansabai sustained burn injuries due to explosion of stove. In the EPR register, there is no reference to pouring any inflammable liquid on Pushpa or Hansabai. After Pushpa and Hansabai were admitted in the hospital, enquiries were made with them by the Doctor regarding the burn injuries and the replies given by Pushpa and Hansabai were noted by Doctor in the medical papers. Exhibit-26 collectively which are indoor medical papers pertaining to Hansabai, show [-8-] that the history of accidental burns was given. So also Exhibit-28 which are indoor medical papers of Pushpa show history of accidental burns due to explosion of stove. In both the indoor papers, it is specifically stated that the patients were conscious. Both these patients i.e. Pushpa and Hansabai were examined by P.W.6 Dr.Puja. Dr.Puja has specifically stated that at the time of admission, both the patients Hansabai and Pushpa gave history of burn injuries. She has stated that both patients were conscious and oriented. Patient Hansabai gave history of burn injuries as accidental burns. Dr.Puja has also specifically stated that she believed the history given by Hansabai and Pushpa to her. 11. I have observed above that the case history as noted in the medical papers, is history of accidental burns. In the present case, it is seen that all the initial papers, EPR Register entries, indoor medical papers show the history given by the patients to the Doctor was that of accidental burns. The dying declarations were recorded at a later stage. There is inconsistency between the dying declarations and the evidence of Doctor and [-9-] documentary evidence like medical papers and EPR register. 12. It may be stated here that the appellant also sustained 55 to 60% burn injuries. According to the appellant, he was sitting in the house of Pushpa. At that time, stove flared up and due to that Pushpa and Hansabai caught fire. The accused tried to rescue them and in the rescue process, he also sustained burn injuries. The indoor papers (Exh.30) of the appellant and the evidence of P.W.6 Dr.Puja show that the appellant sustained 55% to 60% burn injuries. Mr.Sejpal submitted that in the present case, two versions are possible one is that accused poured inflammable liquid on Pushpa and as Pushpa was standing near her mother who was cooking, both of them caught fire. It may be reiterated here that it is not the prosecution case that the accused set either Pushpa or Hansabai or both on fire. The prosecution case is only limited to sprinkling inflammable liquid on Pushpa. Mr.Sejpal submitted that the second version is that it was a case of accidental burns and as the accused was in love with Pushpa which infact, was not liked by her father, he has been falsely [-10-] implicated in the present case. Thus, there are two versions on record. Mr.Sejpal has relied on the decision of the Supreme Court in the case of State of Maharashtra Vs. Sanjay D.Rajhans; 2005 State of Maharashtra Vs. Sanjay D.Rajhans; 2005 State of Maharashtra Vs. Sanjay D.Rajhans; 2005 ALL MR (Cri.) 211 (S.C.) ALL MR (Cri.) 211 (S.C.) ALL MR (Cri.) 211 (S.C.) wherein it is held that when there are two credible versions before the Court, the Court has to give benefit to the accused and it is not safe to sustain the conviction. In the present case also looking to Exhibit-26 collectively, Exhibit-28, Exhibit-37 and the evidence of Dr.Puja, I am inclined to give benefit of doubt to the applicant. 13. In the result, the conviction and sentence of the appellant under Sections 452 and 304-II of the IPC is set aside. The appellant is acquitted of the said offences. The appellant be released forthwith if not required in any other case. The fine amount if paid by the appellant, shall be refunded to the appellant. 14. Appeal allowed. [ SMT.V.K.TAHILRAMANI,J.] [ SMT.V.K.TAHILRAMANI,J.] [ SMT.V.K.TAHILRAMANI,J.]