- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.603 OF 2009 1. Raju s/o Rangrao Marathe, Age 45 years, Occu. Agril., 2. Nana s/o Rangrao Marathe, Age 40 years, Occu. Agri., Both r/o Chichkheda, Taluka & District Dhule. ... APPELLANTS (Original Accused Nos.1 & 2) VERSUS The State of Maharashtra (Copy to be served on Public Prosecutor, High Court of Bombay, Bench at Aurangabd) ... RESPONDENT ----- Mrs. S.S. Jadhav, Advocate holding for Shri A.S. Sawant, Advocate for the appellants Shri K.J. Ghute Patil, A.P.P. for respondent ----- CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. DATED : 17th February, 2010. ORAL JUDGMENT (PER HARDAS, J.) : 1. The appellants, who stand convicted for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced to imprisonment of life and each to pay fine of - 2 - Rs.5000/-, with a default condition of undergoing further rigorous imprisonment for six months in the event of non payment of fine, by Additional Sessions Judge-1, Dhule, by judgment dated 16.11.2009, in Sessions Case No.113/2009, by this appeal, question the correctness of their conviction and sentence. 2. At the time of rejection of the bail application by the appellants, this Court had directed that, in the light of the nature of the challenge which was raised in the appeal in respect of the admissibility of the dying declarations, this Court had directed that the appeal be listed for hearing, granting liberty to the appellants to file private paper book. Accordingly, paper book has been filed and this appeal was listed before us at Sr.No.40 on the final hearing weekly board. The matter was mentioned by the learned counsel for the appellants, pointing out to us our earlier order and accordingly, with the consent of the learned A.P.P., this appeal is listed before us today for final hearing. 3. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus : P.W.6 P.S.I. Pardeshi, who was attached to the Dhule Taluka Police Station, was handed over the papers of investigation in respect of the Crime registered by the Dhule Police Station on the basis of the dying declaration recorded at Exhibit 14 by P.W.1 Laldas. The aforesaid dying declaration was the statement of injured Rangrao, who had been admitted in the hospital on account of burn injuries and who - 3 - ultimately succumbed to his injuries on the same day at about 3.10 p.m. on 8.5.2009. P.W.6 P.S.I. Pardeshi accordingly proceeded to the scene of the offence and drew the scene of the offence panchanama at Exhibit 20 in the presence of P.W.3 Bhimrao. It appears that, the inquest panchanama of deceased Rangrao came to be recorded subsequently at Exhibit 21 also in the presence of P.W.3 Bhimrao. On death of injured Rangrao, Section 302 read with Section 34 of the Indian Penal Code came to be added. Subsequently, it appears that, the dying declaration at Exhibit 18 came to be recorded by P.W.2 Akbar, a Police Head Constable. On both the dying declarations, P.W.5 Dr. Wani had endorsed that the injured was in a fit mental condition to give his statement. The prosecution examined P.W.4 Vimal, wife of deceased Rangrao, but P.W.4 Vimal did not support the prosecution and turned hostile. In any evnet, the seized property came to be forwarded to the Chemical Analyser by the investigating officer. Further to the completion of investigation, a charge sheet came to be submitted against the appelants. The appellants incidentally are the sons of deceased Rangrao, were charge sheeted for the aforesaid offence. 4. Upon committal of the case to Court of sessions, trial Court, vide Exhibit 2, framed charge for offence punishable under Section 302 read with Section 34 of the Indian Penal Code. The appellants denied their guilt and claimed to be tried. The trial Court, upon consideration of the evidence of the two dying declarations, convicted and sentenced the appellants as aforestated. - 4 - 5. Before we advert to the submissions advanced before us by Smt. S.S. Jadhav, learned counsel for the appellants, it would be useful to refer to the evidence of the prosecution witnesses. P.W.1 Laldas states that, on 8.5.2009 he was working as a Special Executive Magistrate and upon receipt of the letter from the Taluka Police Station, Dhule at Exhibit 11, he proceeded to the Burn Ward of the Civil Hospital at Dhule. He obtained the opinion of the medical officer in respect of the fitness of the injured to give his statement. Accordingly, he recorded the dying declaration of injured Rangnath at Exhibit 14. He states that, he had obtained the thumb impression of injured Rangnath and had explained the contents to him which were admitted by him. Undisputedly, this witness has not proved the contents of the dying declaration/ statement at Exhibit 14. 6. P.W.2 Akbar, Police Head Constable, who was attached to Dhule Taluka Police Station, was directed by Head Constable R.S. Pawar to record the statement of injured Rangnath by communication at Exhibit 17. He accordingly visited the Burn Ward of the Civil Hospital and after ascertaining from the medical officer regarding the fitness of the injured to give his statemnet, recorded the statement of Rangnath at Exhibit 18. He obtained the thumb impression of injured Rangnath after explaining the contents of the dying declaration to Rangnath and obtaining his concurrence regarding the contents. This witness also does not prove the contents or the recitals of the statement of Rangnath recorded at Exhibit 18. - 5 - 7. Apart from the evidence of written dying declaration, there is no other evidence worth the name which is adduced by the prosecution. Smt. Jadhav, learned counsel for the appellants has invited our attention to the judgment of this Court in Deorao s/o Sonbaji Bhalerao & Anr. Vs. State of Maharashtra (2008 ALL MR (CRI) 1921 and Jeeven Tulshiram Dhavali & Anr. Vs. State of Maharashtra (2008 ALL MR (CRI) 2018. Both the judgments of the Division Bench deal with the aspect of admissibility of the dying declarations in respect of those dying declarations of which the contents have not been proved by this crime. The Division Bench in the aforesaid judgments came to the conclusion that it was incumbent for the prosecution to prove the contents of the statement of the injured and mere proving the statement by itself would not amount to proof of the contents of the statement. Our attention has been further invited to the Division Bench judgment of this Court in Laxmibai w/o Maruti Satpute & Ors. Vs. State of Maharashtra (2010 ALL MR (CRI) 182) to which one of (P.V. Hardas, J.) was a member. The Division Bench in the said case, relying upon the judgment of the Division Bench in Jeeven Tulshiram Dhavali & Anr. Vs. State of Maharashtra (2008 ALL MR (CRI) 2018 (supra), allowed the appeals and quashed and set aside the conviction on the ground that the contents of the dying declaration had not been proved. In that light of the matter, in the present case also we find that the two witnesses who had scribed the statements of Rangnath i.e. P.W.1 Laldas and P.W. 2 Akbar have not proved the contents of the dying declaration. With the result, unfortunately, the dying declarations at Exhibits 14 and 18 have not been proved. The dying declarations at Exhibits 14 and 18, - 6 - therefore, cannot be made the basis for sustaining the conviction of the appelants for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code. As pointed out by us above, apart from these two dying declarations, there is no other evidence for sustaining their conviction. The appeal, therefore, deserves to be allowed and the accused deserve to be acquitted. 8. Accordingly, Criminal Appeal No.603/2009 is allowed and conviction and sentence of the appellants is hereby quashed and set aside and they are acquitted of the offence with which they were charged and convicted. Fine, if paid by the appellants, be refunded to them. Since the appellants are in jail, they be released forthwith if not wanted in any other case. [ SHRIHARI P. DAVARE, J.] [ P.V. HARDAS, J.]