apeal 144-04.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. APPEAL NO. 144 OF 2004 1. Halima Mohmad Usman Bagwan ] Age : 65 Years, ] R/o. Sant Peth, Pandharpur. ] 2. SMT. KHURSHID ABDUL SATTAR ] BAGWAN ] Age : 43 Years, ] R/o. Sant Peth, Pandharpur. ] Appellants (Presently in Solapur District Jail) ] (Accused) Versus STATE OF MAHARASHTRA ] (Notice to be served to P.P. High Court, ] Mumbai.) ] Respondent Mr. B.R. Patil for the Appellants Mr. K.V. Saste, APP for the State CORAM : P.V. HARDAS & M.N. GILANI, JJ. DATE : 28th MARCH, 2011. ORAL JUDGMENT (Per HARDAS, J): 1. The appellants / original accused who stand convicted for the offence punishable under Section 302 read with 34 of the IPC and sentenced to imprisonment for life and to each pay a fine 1 apeal 144-04.doc of Rs. 1000/- with a default stipulation of undergoing further imprisonment of one month in the event of non payment of the fine, by IVth Additional Sessions Judge, Pandharpur, by judgment dated 21st January 2004, in Sessions Case No. 73 of 1998, by this Appeal question the correctness of their conviction and sentence. 2. Such of the facts as are necessary for the decision of this Appeal may briefly be stated thus:- i. PW 9 Chandrakant Gosavi who in the year 1998 was attached to Town Police Station of Pandharpur as an A.S.I. issued a requisition to a person named M. Bagwan who had appeared at the Police Station at 8th April 1998 at about 10.00 pm with burns. The injured was referred to the Medical Hospital and PW 9 A.S.I. Gosavi directed Head Constable Pandhare to record the statement of the injured. However, Head Constable Pandhare returned to Police Station and informed PW 9 Gosavi that the injured had been shifted to the Government Hospital at Solapur. Subsequently, papers were received from Solapur Police Station on the basis of which an offence vide Crime No. 0/98 had been registered there. Crime at the concerned Police Station came to be registered vide Crime No. 23 of 1998. PW 10 Bhujang Kadam who was also attached to Town Police Station, Pandharpur as P.S.I. was entrusted 2 apeal 144-04.doc with the investigation of Crime No. 23 of 1998. He accordingly visited the scene of the offence. Vide Panchanama at Exh 31, he recorded the statements of about eight witnesses. Injured M. Isaq A. Gani Bagwan succumbed to his injuries on 11h April 1998 at the Civil Hospital at Solapur and accordingly inquest panchanama came to be drawn. Section 302 came to be added. Dead body of deceased M. Isaq A. Gani Bagwan was referred for postmortem examination and postmortem came to be conducted by PW 12 Dr. Ashok Kanki. He noticed that the deceased had sustained 65% burns and accordingly opined that cause of death was shock and toxemia due to 65% burns. The postmortem report is at Exh 45. The provisional cause of death certificate is at Exh 46. As per Column 17 of the postmortem report, the deceased had sustained burns from head to trunk. Further to the completion of investigation, charge sheet against the accused came to be submitted. 3. On committal of the case to Court of Sessions, the trial Court vide Exh 2 framed charge against the appellants for the offence punishable under Section 302 read with 34 of the IPC. The accused denied their guilt and claimed to be tried. The prosecution in support of its case examined 12 witnesses while the accused examined DW 1 Salim Bagwan as a defence 3 apeal 144-04.doc witness. 4. In order to appreciate the submissions urged before us by the learned counsel for the parties, it would be appropriate to refer to the evidence of the prosecution witnesses. 5. The case against the accused rests on the circumstantial evidence. The circumstantial evidence is in the nature of dying declarations. PW 1 Dr. Anil Joshi states that he was serving as C.M.O. in the Municipal Council Pandharpur and had examined the injured M. Isaq A. Gani Bagwan who was brought to the hospital by home-guard. According to him, the injured had given the history i.e his mother in law and sister in law had poured kerosene and had set him ablaze. Since the patient had sustained 65% superficial as well as deep burns, he was transferred to Civil Hospital at Solapur in an ambulance for further treatment. Exh 9 is the certificate in respect of the injuries sustained by the injured. In Exh 9, there is a reference to the disclosure made by the injured. 6. The prosecution has also relied upon the evidence of PW 7 Somraj Sidram Mangalpalli who was serving as Awal Clerk and who claims to have been empowered with the powers of the Executive Magistrate. PW 7 states that he had received a request to record the statement of the injured and accordingly, 4 apeal 144-04.doc proceeded to the Civil Hospital on 9th April 1998 at about 11.00 a.m. and contacted the Medical Officer on duty. He requested the Medical Officer to ascertain the condition of the injured to give his statement. On the medical officer certifying that the injured was in a fit condition to give his statement, he recorded the statement of the injured at Exh 21. PW 7 Somraj however has not deposed about the contents of the dying declaration. PW 8 Abdul Shaikh A.S.I. who was attached with the Solapur Police Station and was on duty at the Civil Hospital Police Chowky claims to have recorded the statement of the injured at Exh 25. PW 8 A.S.I. Shaikh also does not depose about the contents of the dying declaration. Both these witnesses only state that they had recorded the statements of the injured as per the narration of the injured without deposing about the contents of the dying declaration. 7. A reference at this juncture may usefully be made to the judgment of this Court in 'Deorao s/o. Sonbaji Bhalerao & Anr Vs State of Maharashtra' 2008 ALL MR (Cri) 1921, the Division Bench of this Court held that it was incumbent on the scribe to depose about the contents of the dying declaration and in absence of any evidence about the contents of the dying declaration, the dying declaration could not be held to have been proved. Similar view is taken by the Division Bench of this Court in 'Saheblal s/o. Jummassha Sayyad & 5 apeal 144-04.doc Anr Vs State of Maharashtra' 2010 ALL MR (Cri) 766, 'Sk. Biban @ Chunnu s/o. Shaikh Nizam Vs State of Maharashtra' 2010 ALL MR (Cri) 779, 'Laximibai w/o. Maruti Sapre & Ors Vs State of Maharashtra' 2010 ALL MR (Cri) 182. In the light of the aforesaid judgments, according to us, the contents of the two dying declarations have not been proved at all and therefore, these dying declarations will have to be left out of the consideration. 8. Prosecution had examined independent witnesses namely PW 2 Namdev Shinde, PW 3 Majid Bagwan, PW 5 Sattar and PW 6 Shankar. All these witnesses were declared hostile as they did not support the prosecution and were cross-examined. PW 4, however, states that on hearing shouts he came out of his house and noticed that one person had sustained burns and the accused were asking the assembled persons to save him and were pouring water on his person. All these witnesses claimed that they had not heard the injured attributing the burn injuries to the accused. Prosecution has examined the Medical Officers who have endorsed the two dying declarations. However, since we have chosen not to place any reliance on the written dying declarations, according to us, the evidence of these Medical Officers is of no consequence. 6 apeal 144-04.doc 9. The accused have examined DW 1 Salim Bagwan who claims that he was knowing the deceased who was the son in law of accused no. 1. He states that his house is at a distance of about 100 feet from the house of the accused. He states that his mother had expired on 6th April 1998 and on account of the death of his mother, no food was cooked in the house for three days. On 7th April 1998 i.e the day of the incident, the accused nos. 1 and 2 had come to his house carrying a tiffin at about 09.00 p.m. He states that after about five minutes thereafter, the deceased had come from Solapur and informed DW 1 Salim that wife of the deceased was not cohabiting with him and requested DW 1 Salim to inform her relatives to intercede on his behalf. DW 1 Salim requested the deceased to wait till 10th day funeral ceremony and thereafter a meeting would be conveyed. The deceased then went to the house of accused no. 1 and at that time, he was in an inebriated condition. The deceased thereafter removed a bottle from his pocket and poured some substance from the bottle on his person and set himself ablaze. He further states that at that time accused nos. 1 and 2 were in his house and came out of the house on hearing the cries of DW 1 Salim and extinguished the fire. DW 1 Salim was cross-examined by the prosecution and he has admitted that accused no. 1 is the mother in law of his brother and the accused are therefore, related to him. He has admitted that he did not feel it necessary to take the deceased 7 apeal 144-04.doc to the hospital for treatment. He has admitted that his statement had been recorded by the police and he had disclosed this fact to other relatives also. He has denied the suggestion that the deceased was asking accused no. 1 to sent his wife for cohabitation and upon that accused no.1 had poured kerosene from a stove and accused no. 2 had set him ablaze. 10. The learned counsel for the appellants has urged before us that the evidence of DW 1 can certainly be relied upon as though DW 1 has been cross-examined, nothing of importance has been elicited in his cross-examination to discard his evidence. It is also urged before us that the evidence of DW 1 Salim competes with the prosecution evidence and the defence of the accused can be said to be probabalised by the evidence of DW 1. A reference may usefully be made to the judgment of the Supreme Court in ' Dudh Nath Pandey Vs State of U.P.' AIR 1981 SC 911 wherein it was held that the defence witnesses are entitled to equal treatment with those of the prosecution and Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses. 11. A reference may usefully be made to the observations of the Supreme Court in 'Munshi Prasad & Ors Vs State of Bihar' 8 apeal 144-04.doc (2002)1 SCC 351. The Supreme Court in this judgment held at para 3 that: "......the evidence tendered by the defence witnesses cannot always be termed to be a tainted one by reason of the factum of the witnesses being examined by the defence. The defence witnesses are entitled to equal respect and treatment as that of the prosecution. The issue of credibility and trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution - a lapse on the part of the defence witnesses cannot be differentiated and be treated differently than that of the prosecutor's witnesses." 12. A reference may also be made to the judgment of the Supreme Court in 'Sanjiv Kumar Vs State of Punjab' 2009(16) SCC 487. The Supreme Court in this judgment held at para 23 that: "It has been observed that defence witnesses are often untruthful, but that is not to say that in all cases defence witnesses must be held to be untruthful, merely because they support the case of the accused. The right given to the appellant to explain the incriminating circumstances appearing against him serves a purpose, and cannot be ignored outright. In every case the Court has to see whether the defence set up by the accused is probable, having regard to the totality of the facts and circumstances of the case. If the defence appears to be probable, the Court may accept such defence. This is primarily a matter of appreciation of evidence on record and no straitjacket formula can be enunciated in this regard." 9 apeal 144-04.doc 13.Upon perusal of the evidence of DW 1 Salim, we find that the evidence of DW 1 Salim has been probabalised by (1) absence of effective cross-examination on material aspects of his evidence, and (2) that the prosecution case itself is that the accused were not sending wife of the deceased for cohabitation on account of which the deceased was in an agitated state of mind and there was every likelihood of the deceased committing suicide in order to teach the accused a lesson to whom he though were responsible for not sending his wife. 14.If the dying declaration recorded by DW 1 is contrasted with the prosecution case, we find that the dying declaration does not appear to be a truthful version. As pointed out by us above, the deceased was in an agitated frame of mind as his wife was not being sent by the accused for residing with him. The deceased appears to have complained so to the defence witness Salim as well. According to the prosecution, the deceased had so stated to the accused when he had gone to their house demanding that his wife be sent to reside with him. We find that the accused had absolutely no motive at all to commit the offence i.e to set their son in law ablaze. The prosecution has not been able to contradict any disgruntle feelings nor any facts are brought on record which would show that the accused were harboring some animosity against the 10 apeal 144-04.doc deceased. The whole incident appears to us to be incredible and unbelievable. We find it difficult that the accused would stand like a moot statue permitting accused no. 1 to pour kerosene from a stove and accused no. 2 to set him ablaze by striking a matchstick. According to us, the deceased could have overpowered the accused at any point of time. Further, the postmortem report shows that the deceased had sustained burn injuries from head to the waist. It would take some effort on behalf of accused no. 1 to pour kerosene from a stove on the head of the deceased and we find it difficult to believe that the deceased would just stand there and not realized the implication of what was being done by the accused. Further, when the accused had gone to the Police Station, he did not immediately disclosed to the Police who was present in the Police Station that the accused had set him ablaze. In fact, the evidence of the prosecution is to the effect that only a requisition was given for his medical treatment. Nothing prevented the deceased from even uttering one sentence that the accused set him ablaze. It is obvious to us therefore that the accused poured kerosene on himself, set himself ablaze, attempted to commit suicide and named the accused as perpetrators of the crime. The Police had recorded the statement of DW 1 Salim, yet the prosecution choose not to examined him. None of the independent witnesses who had gathered immediately at the scene of the offence supported 11 apeal 144-04.doc the prosecution. In such circumstances, we find that no reliance at all can be placed on the alleged disclosure made by the deceased to PW 1 Dr. Joshi. The evidence of DW 1 Salim appears to us to be probable and in that light, according to us, the accused are entitled to be given the benefit of doubt. 15. Accordingly Criminal Appeal is allowed and the conviction and sentence of the Appellants is hereby quashed and set aside and the Appellants are acquitted of the offence with which they were charged and convicted. 16.Fine, if any, paid by the Appellants be refunded to them. 17.Since the Appellants are in Jail they be released forthwith, if not warranted in any case. [ M.N. GILANI, J ] [ P.V. HARDAS, J ] 12 apeal 144-04.doc 13