1 criapl-326.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 326 OF 2011 Gorakh Vishwanath Bhawar, age 30 years, occup. service, r/of Bhavar Vasti, Harinarayan Appellant/ Ashta, Tq. Ashti, District Beed. Ori.accused. versus State of Maharashtra Respondent -------- Shri Joydeep Chatterji, Advocate for the appellant. Shri N. R. Shaikh, A.P.P. for Respondent- State. Coram: A. H. Joshi and A.R. Joshi, JJ. Date : 30th September, 2011. Judgment : ( Per: A.H.Joshi, J.) 01. Heard learned Advocate for the appellant, and learned A.P.P. for the Respondent. 02. The appellant-accused was convicted for commission of offence under Section 302 of the Indian Penal Code and sentenced to suffer life imprisonment with fine of Rs.500/-, in default, six months rigorous imprisonment, by the learned Additional Sessions Judge, Beed, by his judgment and order delivered on 21.6.2011 in Sessions Case No. 84 of 2010. 03. The prosecution story, in brief, is that appellant-accused Gorakh Bhawar set his wife Rani ablaze by pouring kerosene on her person and lit her by a match stick. Rani succumbed to the injuries. 2 criapl-326.11 04. The prosecution has examined in in support of its case, eleven witnesses. PW-7 Special Judicial Magistrate (Exh.41/C) has recorded the dying declaration (Exh. 43). PW-11 Dr. Darshana Baraskar (Exh. 56/C) is examined to prove the state of health and fitness of the victim Rani to give dying declaration. PW Nos.3, 4 and 5, examined to prove the incident and the fact of accused being last seen etc., were declared hostile. 05. The witnesses, namely, PW-3 Rakhmabai Bhavar (Exh.25/C) and PW-5 Suvarna Galgate (Exh. 32/C) have seen the deceased and the accused in company of each other, immediately or soon after the incident. PW Nos. 3 and 5 are the neighbours of the accused. PW-5 Suvarna has not witnessed part of the incident. PW-4 was examined to prove the vices of the accused. 06. The learned Sessions Judge convicted the accused, based on the dying declarations. 07. The accused has urged following points in support of appeal:- (i) The dying declaration is the sole foundation of conviction, which has gone uncorroborated. (ii) Victim Rani herself disclosed in dying declaration that accused extinguished fire. (iii) The accused had suffered injuries in the effort of extinguishing the fire. 3 criapl-326.11 (iv) Investigating Officer has deposed that accused was absconding. He admitted in the cross examination that during the period i.e. after the incident and before arrest, the accused was admitted in the hospital. (v) The Investigating Officer has admitted burn injuries to the accused. (vi) The injuries to accused are proved by PW-3. 08. The prosecution has seriously banked upon the dying declaration in the background that PW Nos. 3, 4 and 5 are declared hostile. 09. We have perused the evidence, so also the dying declaration on record. 10. A statement is found in the dying declaration, relating to the accused having exerted to extinguish fire, which reads as follows:- ____________________________________________________________ (quoted from para 2 of dying declaration, paperbook pg.76) 11. PW-3 Rakhmabai has stated in examination in chief and in cross examination by defence, as regards the fact of arrival of the accused on the scene of offence, in the following words:- " 2. ....................................................................................... I, Suvarna made attempt to extinguish fire. Other people came there. Accused came back to the house when Rani was burnt. Rani was taken to hospital at Ashti in Auto-rickshaw. Whole body of Rani was burnt....................................................... ....................................................................................................." (quoted from para. No. 2 of deposition, page 47 of paperbook) 4 criapl-326.11 "3. ............................................................................................ I, Suvarna, Vithal and accused extinguished fire of Rani. Accused Gorakh spread quilt around Rani and his hands were burnt. Rani did not talk my husband Vithal. ............................." (quoted from para 3, paper book page No.49) 12. PW-3 has also stated in examination-in-chief, as regards her version recorded by police, being factually incorrect. The relevant portion reads as follows :- "2. ..................................................................................... I have not stated before police portion mark "A" that accused and Rani were present in the house and I and Suvarna were cutting onion fruits, at that time Rani came in burnt condition and we extinguished her fire, by wrapping quilt (blanket) around the body. It was not happened that I have stated before police portion mark "B" that accused came under influence of liquor and asked Rani to go to her maternal home and poured kerosene on her person and attempted to commit her murder. ................................................................................................" (Quoted from para 2 on page No.47 of paperbook) 13. Insofar as PW-5 Suvarna is concerned, she has stated in her examination-in-chief, as follows:- "1. ...................................................................................... Accused came in rickshaw. Accused gave clothe to his daughters. Rani came out of the house by crying. She was burning. .................................................................................." (Quoted from para 1 on page No.65 of paperbook) 5 criapl-326.11 This witness has also stated as regards children of accused and deceased as follows:- "1.............................................................................................. I and Rakhmabai were taking out onions. Children of accused were playing with the children of Rakhmabai. ................................................................................................" (Quoted from para 1 on page No.65 of paperbook) 14. On appreciation of what we have noted from the evidence as reproduced above, we arrive at a conclusion that presence of the accused in the room and to have set fire to his wife Rani, is not proved by the prosecution, in any manner whatsoever. 15. Efforts of the prosecution to prove the presence of the accused in the house, based on dying declaration, has come under serious cloud of doubt for the reasons :- (i) Deceased Rani herself told that accused tried to extinguish fire. (ii) PW Nos. 3 and 4 not only support the version that the accused tried to extinguish fire, but also state that the accused came on the scene after Rani was already ablaze. (iii) PW-3 Rakhmabai, in categorical terms, averred in her examination-in-chief, that after Rani came out of her room with flames around, the accused arrived on the scene in a auto- rickshaw and exerted to extinguish fire and had suffered injuries due to burns. (iv) In these circumstances, the defence of the accused is highly probable. (v) The presence of the children around the scene of offence at the crucial time is proved/suggested, however, prosecution is silent on the point whether their statements were recorded by police. (vi) These children were not examined in the trial. (vii) The children could have been best witnesses of presence of accused in the house when Rani caught fire-for shifting the burden on the accused. 6 criapl-326.11 (viii) In the cross examination of the hostile witnesses by the learned Public Prosecutor, nothing useful was elucidated. 16. In the given situation, solitary piece of evidence in the form of dying declaration, relied upon by the prosecution, instead of getting corroborated, has been brought under serious doubt, in view of the statements by PW Nos. 3 and 5. 17. Therefore, sole piece of evidence, namely, dying declaration having come under shadow of doubt, the impugned judgment and order of conviction rendered by the learned Additional Sessions Judge, does not sustain. 18. In the result, the appeal is allowed. The judgment and order delivered on 21.6.2011 by the learned Additional Sessions Judge, Beed, in Sessions Case No. 84 of 2010, is hereby set aside. The accused stands acquitted of the charge levelled against him. He be set at liberty, if not required in any other case. (A.R. JOSHI, J.) (A.H. JOSHI, J.) pnd/criapl-326.11