{1} Cri. Appeal No.514/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.514 OF 2009 Nandkumar s/o Ashok Zine APPELLANT Age-25 years, R/o Pimpalgaon Malvai Dist-Ahmednagar Presently in Yerwada prison VERSUS The State of Maharashtra RESPONDENT ....... Mr.Hemant Survey, Advocate for the appellant Mr.N.H.Borade, APP for respondent State ....... CORAM : NARESH H. PATIL AND A.V.POTDAR, J.J. DATE : 17 th March 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. The appellant has assailed the correctness of his conviction u/s 302 of the Indian Penal Code and sentence of imprisonment for life and to pay a fine of Rs.100/-, with default stipulation of undergoing simple imprisonment for 6 months, awarded by Additional Sessions Judge-2, Ahmednagar vide {2} Cri. Appeal No.514/2009 judgment and order dated 09.09.2008 rendered in Sessions Case No.43/2008. 2. The prosecution case, as unfolded during the trial, is follows : a) PW-7, Sonu Soma Otawanekar, PSI attached to Bhingar Camp police station, Ahmednagar, had received an information on 02.12.2007 that one female was admitted in the civil hospital in burn condition. Accordingly, PW-7 Otawanekar had directed to forward a request letter to Special Executive Magistrate to record the statement of the victim. Thereafter, PW-7 PSI Otawanekar had went to civil hospital, where PW-6 Dr.Pathak-on duty casualty medical officer, had introduced him with the victim and after Dr.Pathak examined the victim, he recorded statement of victim Priya (Exhibit-36), on the basis of which an offence at Crime No.188/2007 punishable u/s 307, 498A, 323, 504 and 506 r/w 34 of the Indian Penal Code was registered against the appellant and others. Following to the registration of the offence, PW-7 himself carried out the investigation in the said offence. b) During the course of investigation, Spot Panchanama (Exhibit-18) was drawn and one kerosene can, burnt pieces of clothes and match stick was seized from the spot. {3} Cri. Appeal No.514/2009 Thereafter, statements of some witnesses, including relatives and land lady of the victim Priya were recorded. c) In the same night, Special Executive Magistrate PW-4 Gorakshnath Dashrath Ghrgarkar recorded second statement (Exhibit-24) of the victim between 00.40 hours and 1.15 hours, on 03.12.2007, after the victim was examined by Dr.Pathak and certified that she was in fit condition to give the statement. d) During the further investigation the appellant and his parents were put under arrest. On 06.12.2007, Priya succumbed to the burn injuries. Thereafter, inquest Panchanama (Exhibit-34) was drawn on the dead body and the same was referred for post mortem examination. As the victim succumbed to the burn injuries, the offence came to be converted u/s 302 of the Indian Penal Code. e) After the demise of Priya, supplementary statements of the witnesses, whose statements were recorded earlier, were recorded and the property, which was seized during the investigation, was forwarded to the Chemical Analyzer along with requisition letter (Exhibit-39). The postmortem was conducted on the dead body of Priaya in the civil hospital and accordingly Postmortem report (Exhibit-43) was prepared. After, receipt of the CA reports (Exhibit-40 and 41) {4} Cri. Appeal No.514/2009 and on completion of the investigation, charge sheet came to be filed before the JMFC, Ahmednagar. f) On committal of the trial to the Court of Sessions, Additional Sessions Judge, Ahmednagar framed charge (Exhibit-10) against all the accused for an offence punishable u/s 498A r/w 34 of the Indian Penal Code and against the appellant for an offence punishable u/s 302 of the Indian Penal Code. All the accused abjured their guilt and claimed to be tried. Prosecution, to substantiate the charges levelled against the accused, examined in all 7 witnesses. However, out of the 7 prosecution witnesses, PW-1 Vasant Bhagat-a witness to spot Panchanama (Exhibit-18), PW-2 Pushpa Zarekar-mother of the deceased and PW-3 Nanabai Zarekar- maternal aunt of the deceased, did not support the prosecution case. Therefore, relying on the two dying declarations, the trial court convicted the appellant for an offence punishable u/s 302 of the Indian Penal Code, however acquitted the appellant and others for an offence punishable u/s 498A r/w 34 of the Indian Penal Code. Admittedly, the State has not preferred any appeal against the acquittal of the accused for an offence punishable u/s 498A r/w 34 of the Indian Penal Code and hence the said acquittal has attained finality. 3. For proper appreciation of the impugned judgment so {5} Cri. Appeal No.514/2009 also the rival submission advanced on behalf of the appellant and respondent State, it may be useful to advert to the evidence of material witnesses examined before the trial court. 4. The postmortem report (Exhibit-43) was tendered after the evidence of the Investigating Officer was over. Perusal of the Postmortem report (Exhibit-43) indicates that the deceased had sustained 58% burn injuries, which are more particularly described in column No.17 of the Postmortem report. The Medical Officer, who has conducted the Postmortem, has opined that the probable cause of death is due to C-P failure due to septicemic shock due to 58 % burns. Thus, it is clear that the death of Priya is an unnatural death. It is settled principle of law that every unnatural death is not a murder, unless it is established and proved that the said unnatural death is a homicidal one. The defence has admitted the inquest Panchanama (Exhibit-34) u/s 294 of the Criminal Procedure Code and in view of the inquest Panchanama and the Postmortem report, at this juncture, it can only be inferred that the death of Priya is an unnatural death. 5. It has came in the evidence of PW-4 Ghrgarkar, Special Executive Magistrate, that on 02.12.2007, on receipt of the requisition letter from the police station, he reached at the civil hospital and Dr.Pathak (PW-6), on duty Casualty Medical Officer, had introduced him to injured Priya and in presence of Dr.Pathak and after he certified that Priya was in a condition to give {6} Cri. Appeal No.514/2009 statement, he had recorded her statement (Exhibit-24) between 00.40 hours and 1.15 hours, on 03.12.2007. Thereafter, he read over the statement to her, which she had admitted to be true and correct and he had thereafter obtained her left toe impression as well as endorsement of Dr.Pathank, on the said statement. He has stated in his cross examination that the deceased was making gestures while speaking and he had recorded her statement by drawing convenient inference from her gestures and he had written the said statement on the basis of narration and gestures of the victim and he had put his signature on the statement after the same was read over to the victim. In his re-examination, he has stated that the deceased was talking and making gestures also and she was making the gestures of what she had spoke. 6. PW-7 PSI Sonu Otawanekar, has stated in his evidence that on receipt of the information about admission of Priya, he had reached in the civil hospital where PW-6 Dr.Pathak, Casualty Medical Officer had introduced him to Priya and after Dr.Pathak examined her, he had recorded her statement (Exhibit-36) between 00.05 hours and 00.20 hours on 03.12.2007. He had obtained endorsement of Dr.Pathak, before as well as after recording of the statement (Exhibit-36). In his cross examination, he has stated that during his visit to the scene of offence, he did notice one stove in the kitchen, which he had inspected, however did not seize. He has admitted that he did not find any burn piece of a match stick during his visit to the spot of incident and hence he has not {7} Cri. Appeal No.514/2009 mentioned about matchstick in the spot Panchanama. 7. Ultimately, remained the evidence of PW-6 Dr.Pathak, who has stated that during his duty hours, as Casualty Medical Officer, on 2.12.2007, at about 11.30 p.m. Priya was admitted in burn patient ward on account of sustaining burn injuries. At the time of admission in the hospital, Priya was conscious oriented. When PW-7 PSI Otawanekar so also PW-4 Ghrgarkar, arrived in the hospital for recording statements of Priya, he had examined Priya and had put endorsements to the effect that she was conscious oriented and was in a fit state of mind to give statement. In his cross examination he has stated that Priya was admitted in the hospital on 02.12.2007 at 9.00 p.m. and after her admission, he started Ringer lactate, injection crystalline, penicillin, injection Gentamycin, injection aciloc, injection voveran, injection dexa, injection effcorline, injection TT. He has also stated that these injections were given to Priya to prevent infection, acidity, pains and swelling. Her spinal cord was affected due to voveran injection. He has stated that when the injured was first admitted in the hospital, smell of kerosene was not emanating from her body. Due to burn injuries, some smoke was generated and due to inhaling of the smoke the larynx were congested and after injection, the congestion was started decreasing. Due to congestion the voice becomes slightly hoarse. 8. As the conviction of the appellant is solely based on {8} Cri. Appeal No.514/2009 the two dying declarations (Exhibit-36 and Exhibit-24), it is specifically urged by learned counsel for the appellant that as the contents of the dying declarations (Exhibit-36) recorded by PW-7 and Exhibit-24 recorded by PW-4, are not proved the said dying declarations cannot be read in the evidence. In addition to this, it is also urged that in her evidence, PW-2 Pushpa mother of Priya, before she was declared hostile, has specifically stated that Priya was unconscious since her admission in the hospital till her death and was not in a position to speak. In her cross examination, conducted by APP, she has stated that the house of Priya is at the distance of 5 minutes walking from her house and financial position of the appellant was at par with their financial position. She has, in no uncertain words, admitted that since admission of Priya in the hospital, she was with Priya till her death. 9. Learned counsel for the appellant has further urged that PW-3 Nanabai-maternal aunt of Priya has also stated that she had rushed to the hospital immediately after Priya was admitted there, however Priya did not talk with her. PW-2 Pushpa-mother of the deceased was all along with Priya since her admission in the hospital till her death. Learned counsel for the appellant, therefore, urged to discard the evidence of dying declarations and consequently to allow the appeal and acquit the appellant. 10. Per contra, learned APP has urged that it is evident from the evidence of PW-7 Investigating Officer and PW-4 Special {9} Cri. Appeal No.514/2009 Executive Magistrate coupled with the evidence of PW-6 Dr.Pathak, that Priya was in a fit condition while her statements (Exhibit-24 and 36) were recorded and hence conviction of the appellant based on these dying declarations, requires no interference. It is further urged that at the relevant time, deceased was in the exclusive custody of the appellant and hence presumption u/s 106 of the Indian Evidence Act, lies against the appellant and it is for the appellant to explain as to how Priya-his wife, had sustained burn injuries. In absence of any explanation offered by the appellant, his conviction need not be disturbed. 11. After giving cautious hearing to the submissions advanced by both the sides, we have perused the impugned judgment and order of conviction as well as record and proceeding. Perusal of the impugned judgment indicates that the conviction of the appellant is based on two dying declarations (Exhibit-24 and Exhibit-36). This Court has taken a consistent view in the matter of “Deorao Sonbaji Bhalerao V/s State of Maharashtra 2008 ALL MR (Cri) 1921, "Saheblal s/o. Jumassha Sayyad & Anr Vs State of Maharashtra" 2010 ALL MR (Cri) 766, "Sk. Bibab @ Chunnu s/o. Shaikh Nizam Vs State of Maharashtra" 2010 ALL MR (Cri) 779, "Laxmibai w/o. Maruti Satpute & Ors Vs State of Maharashtra" 2010 ALL MR (Cri) 182, and in the recent unreported judgment in Criminal Appeal No.643/2009 dated 07.03.2011 delivered at the Principal Seat, in the matter of {10} Cri. Appeal No.514/2009 “Meherunnissa Javed Shaikh V/s State of Maharashtra” that the contents of the dying declaration, written by the scribe, has to be deposed as to what was told to him by the injured. In absence of such evidence, the written dying declaration, de hors the contents being proved and hence could not be read in evidence. In the instant case, the conviction of the present appellant is based on the dying declarations, contents of which are not admittedly proved by the scribe of the said dying declarations. In the light of these judgments, the evidence of PW-4 Special Executive Magistrate and PW-7 PSI Otawanekar in respect of dying declarations (Exhibit-24 and Exhibit-36) requires to be excluded from consideration. After excluding this evidence, there is absolutely no evidence on record to hold that the death of Priya is a homicidal and the appellant is the author of the same. 12. Since the trial court has observed that as the death occurred in the matrimonial house, the explanation has to be offered by the appellant, being a husband of the deceased, it would be useful to refer the observations of the Apex Court in the matter of “Subramaniam V/s State of Tamil Nadu” 2009 ALL MR (Cri) 2118 (S.C.). “So far as the circumstance that the husband and wife living together is concerned, indisputedly, the entirety of the situation should be taken into consideration. Ordinarily, when the husband and wife remained within the four walls of a house and the death of homicide takes place, it will be for the husband to explain the circumstances in which she might have died. However, {11} Cri. Appeal No.514/2009 we cannot loose sight of the fact that although the same may be considered to be a strong circumstance, but that by alone, in absence of evidence of violence on the deceased cannot be held to be conclusive. It may be difficult to arrive at a conclusion that the husband and husband alone was responsible therefor.” The Apex Court, in the matter of “P.Mani V/s State of Tamil Nadu” 2006 AIR SCW 1053 has observed that to draw a presumption u/s 106 of the Evidence Act, burden is on the prosecution that the accused and the deceased were last seen together and in absence of such proof, presumption u/s 106 of the Evidence Act, cannot be drawn. 13. Leading cases on the point of last seen together, are discussed by the Apex Court in the matter of “Dasari Siva Prasad Reddy V/s Public Prosecutor, High Court of A.P.” AIR 2004 SC 4383 and in “Sohel Mehaboob Shaikh V/s State of Maharashtra” 2009 AIR SCW 4145. The Apex Court, in both the above referred judgments, has held that though death of the wife occurred in the premises occupied by the husband and wife, it is necessary to bring evidence on record that at the time of the incident, the husband and wife were last seen together. 14. As discussed above, after excluding the evidence of dying declarations of Priya (Exhibit-24 and Exhibit-36) and in absence of any proof that at the material time Priya-wife of the appellant, was in the company of the appellant, no presumption {12} Cri. Appeal No.514/2009 u/s 106 of the Indian Evidence Act, can be drawn. Once the evidence regarding dying declaration and presumption u/s 106 of the Indian Evidence Act is negated, there is absolutely no evidence to link the appellant with the offence of murder punishable u/s 302 of the Indian Penal Code. In the premise, the appeal ought to succeed. 15. Consequently, we allow this criminal appeal. The judgment and order of conviction and sentence, recorded by the Additional Sessions Judge-2, Ahmednagar, dated 09.09.2008, in Sessions Case No.43 of 2008, is hereby quashed and set aside. The appellant is in jail, he be set at liberty forthwith, if not required in any other case. The fine amount, if paid, be refunded to the appellant. [A.V.POTDAR, J.] [NARESH H. PATIL, J.] drp/A11/criapel514-09