1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.583 OF 2009 Sunil s/o Mannu Lohar, Age 30 years, Occu.Agriculture, R/o Gondegaon, Taluka Soygaon, District Aurangabad .. APPELLANT VERSUS The State of Maharashtra .. RESPONDENT Mrs.Varsha S.Ghanekar, Advocate for appellant Shri K.S.Patil, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ DATE : 28th JANUARY 2010 ORAL JUDGMENT (PER SHRIHARI P.DAVARE, J.) 1. This appeal is directed against the judgment and order rendered by learned Additional Sessions Judge, Aurangabad in Sessions Case No.315/2008, dated 8.10.2009 convicting the appellant (original accused No.1) for the offences punishable under Sections 302 and 498-A of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay fine of Rs.1,000/- with a default condition to undergo simple imprisonment for one month for non-payment of fine, for offence punishable under Section 302 of the Indian Penal Code and also sentencing him to suffer rigorous imprisonment for three years and to pay fine of Rs.500/- with a default condition of undergoing simple imprisonment for 15 days for non-payment of fine. 2 2. The factual matrix which can be summarised in nutshell are as under. That the appellant herein is the husband of deceased Rekha alias Rakhi. Original accused Nos.2 and 3 are the parents of accused No.1. The marriage of deceased Rekha was solemnised with appellant herein about five years prior to the incident. There are allegations of cruelty and ill-treatment to the victim Rekha at the hands of the appellant and the accused Nos.2 and 3. It is also alleged that the appellant herein used to suspect the fidelity of deceased Rekha and on the said count she was subjected to cruelty. 3. It is alleged that on the date of incident, i.e. on 10.5.2008 at about 7.00 to 8.30 a.m. the appellant herein came to the house and started abusing deceased Rekha and also stated that she did not allow him to sleep in the house and she used to send him to sleep in the shop. It is also alleged that the accused Nos.2 and 3 were also in the house. It is further alleged that after the said quarrel, appellant herein poured the kerosene on the person of his wife i.e. deceased Rekha and set her on fire and thereby deceased Rekha sustained burn injuries. It is also alleged that Rekha shouted due to burn injuries and thereupon neighbours rushed to the house of appellant and extinguished the said fire. 3 The prosecution case further reveals that the accused persons took the injured Rekha to Ghati hospital at Aurangabad for the medical treatment. 4. According to prosecution, P.W.4 Head Constable Sahebrao Patil was attached to Police outpost, Ghati hospital, Aurangabad and was on duty at the relevant time. At about 1.00 p.m., the Medical Officer called him and informed about the burn injuries sustained by one lady. Accordingly, P.W.4 Head Constable Sahebrao Patil made enquiry with the said lady who disclosed her name as Rekha alias Rakhi Sunil Lohar. It is alleged that P.W.4 Head Constable Sahebrao Patil recorded her statement as per narration (Exh.26). The prosecution case further recites that P.W. 4 Head Constable Sahebrao Patil also obtained the endorsement of P.W.7 Dr.Bhushan on the said statement in respect of fitness of the said injured lady to give her statement. It is further stated that thereafter M.L.C. was recorded which is part of Exh.28. Accordingly, pursuant to the said statement of the injured, offence came to be registered on 12.5.2008 in C.R.No.T-54/2008 under Sections 498-A, 307, 323, 504 read with Section 34 of the Indian Penal Code. 5. The prosecution case further reveals that P.W.5 Head Constable Gautam Mahire was attached to Soygaon Police Station 4 as Police Head Constable on 12.5.2008 and I.S.O. More handed over the investigation of the said crime to him. Accordingly, he prepared the spot panchnama (Exh.29) and seized one small bottle containing 50 ml. kerosene therein and pieces of saree and pieces of petticoat from the spot of incident. He also recorded the statements of the witnesses. Thereafter, the further investigation was handed over to P.W.6 P.S.I. Baburao Wakodkar, who was attached to Soygaon Police Station at the relevant time and P.S.I. Zote had already arrested the accused under the arrest panchnama which are produced at Exhs.33 to 35, respectively. P.W.6 P.S.I. Baburao Wakodkar sent the seized Muddemal property to Chemical Analyzer’s office on 28.6.2008 along with the forwarding letter (Exh.36). He also recorded the statements of the parents of deceased Rekha during the course of investigation. Thereafter, he collected the Chemical Analyzer’s report which is produced at Exh.37. 6. During the course of investigation, the injured Rekha was discharged from the hospital but thereafter she died on 2.7.2008 at the house of her parents. P.W.3 Dr.Sadhana More conducted the post mortem on the dead body of deceased Rekha and the post mortem notes are produced at Exh.24. The cause of death was mentioned in the post mortem report as terminal cardio- respiratory failure due to deep burns due to septicemia. 5 Accordingly, Section 302 of the Indian Penal Code was incorporated in the above referred C.R. and after completion of investigation, P.W.6 P.S.I. Wakodkar filed a charge-sheet against the appellant herein and original accused Nos.2 and 3. Since the offence was triable by Court of Sessions, the case was committed to Court of Sessions, Aurangabad and the learned Additional Sessions Judge, Aurangabad framed the charge against the appellant for the offence punishable under Section 302 of the Indian Penal Code whereas charge was framed under Sections 498-A, 504, 506 read with 34 of the Indian Penal Code against the present appellant and original accused Nos.2 and 3 at Exh.15. 7. To substantiate the charges leveled against the accused persons the prosecution examined inasmuch as seven witnesses as mentioned below : P.W.1 - Kalpana Pardeshi, i.e. mother of the victim Rekha P.W.2 - Amrut Pundlik Garud, Member of Tanta Mukti Samiti Gondegaon, Taluka Soygaon, Dist.Aurangabad P.W.3 - Dr.Sadhana More who conducted the post mortem on the dead body of victim Rekha P.W.4 - Head Constable Sahebrao Patil, who recorded the dying declaration of deceased Rekha on 10.5.2008. 6 P.W.5 - Police Head Constable Gautam Mahire who prepared the spot panchnama P.W.6 - P.S.I. Baburao Wakodkar, Investigating Officer P.W.7 - Dr.Bhushan Ubhale, who gave the endorsement on dying declaration (Exh.42) 8. The defence of the original accused Nos.2 and 3 was of total denial and the appellant stated that his wife i.e. deceased Rekha sustained burn injuries while cooking on “Chool”. Accordingly, the appellant and accused Nos.2 and 3 faced the trial in Sessions Case No.315/2008 for the aforesaid charges and the appellant accused No.1 came to be convicted and sentenced as aforesaid, whereas original accused Nos.2 and 3 were acquitted of the charges leveled against them. Being aggrieved and dissatisfied by the said judgment and order rendered by the learned Additional Sessions Judge, Aurangabad on 8.10.2009 convicting and sentencing the appellant herein, the appellant has preferred the present appeal praying for quashment thereof. 9. The pivot of the prosecution case wholly revolves around the written dying declaration Exh.26 of the deceased Rekha recorded by P.W.4 Head Constable Sahebrao Patil and oral dying declaration given by victim Rekha before her mother, i.e. P.W.1 Kalpana Pardeshi. Hence, before adverting to the submissions 7 advanced by learned Counsel for the parties, it is necessary to scrutinise the material evidence of P.W.4 Head Constable Sahebrao Patil, written dying declaration (Exh.26) and testimony of P.W.1 Kalpana Pardeshi, the mother of deceased Rekha and coming to the deposition of P.W.4 Head Constable Sahebrao Patil, wherein he stated that he was attached to Police outpost attached to Ghati hospital at Aurangabad on 10.5.2008 and he was on duty between 8.00 a.m. and 8.00 p.m. At about 1.00 p.m., the Medical Officer called him in Casualty Ward and informed him about the burn injuries sustained by one lady. Hence, P.W.4 enquired with her and she disclosed her name as Rekha alias Rakhi w/o Sunil Lohar. He stated that she was conscious and she was able to talk properly and accordingly, he recorded her statement as per her say and he reduced in writing personally as per her say which is marked as Exh.26. He also stated that when he went to the hospital, he gave a letter to the Medical Officer (Exh.27) and the Medical Officer examined the patient and thereafter he made an endorsement on the letter showing the mental condition of the said patient. Thereafter, he recorded the statement of the said patient as per her say in the presence of the Medical Officer and obtained the signature thereon. He further stated that after recording her statement the Medical Officer examined the said patient and signed thereon. During cross-examination, he admitted that he has not mentioned the 8 exact timing of recording and completing the statement of the deceased in Exh.26. 10. The learned Counsel for the appellant submitted that P.W.4 Head Constable Sahebrao Patil has not proved the contents of the written dying declaration (Exh.26). The learned Counsel for the appellant also submitted that although P.W.4 Head Constable Sahebrao Patil received the information from the Medical Officer at about 1.00 p.m. on 10.5.2008, the dying declaration (Exh.26) of the injured Rekha alias Rakhi came to be recorded after the delay of about four hours i.e. at about 5.00 to 5.15 p.m. on the same day. She further canvased that the endorsement of doctor was not obtained prior to recording of dying declaration of deceased Rekha Lohar in respect of her fitness before recording her statement. According to learned Counsel for the appellant, P.W.4 Head Constable Sahebrao Patil stated in the cross- examination that no relatives were present at the time of recording the statement whereas P.W.7 Dr.Bhushan has stated that relatives of the deceased were present at the time of recording of the said dying declaration. It is also submitted that the written dying declaration (Exh.26) refers to kerosene can of two liters whereas spot panchnama reflects that a small bottle of 180 ml. having 50 ml. kerosene therein was recovered from the place of incident and P.W.5 Gautam Mahire who prepared the spot panchnama stated that he seized one small kerosene bottle 9 containing 50 ml. kerosene therein from the place of incident. Accordingly, the learned Counsel for the appellant submitted that the contents of such dying declaration (Exh.26) cannot be construed as basis and foundation to inflict the conviction upon the appellant herein. In the said context, learned Counsel for the appellant relied upon the judgment of Supreme Court in the case of “Deorao s/o Sonbaji Bhalerao & Anr. Vs. State of Maharashtra”, reported at 2008 ALL MR (Cri) 1921 wherein it is held that dying declaration cannot be presumed to be correct unless proved according to law and no presumption is available in respect of such dying declaration under Section 80 of the Evidence Act. What is admissible in evidence is the statement made by dying man as to who was responsible for causing his death and not the paper on which dying declaration is recorded. Hence, the Magistrate or the person who records it will have to testify and prove who was named as offender by the dying person before the Court during the trial. 11. The learned Counsel for the appellant also placed reliance upon the observations made by the Division Bench of this Court, Bench at Nagpur in the case of Jivan Tulsiram Dhavali & Anr. Vs. State of Maharashtra, reported at 2008 ALL MR (Cri) 2018 wherein it is held that merely exhibiting the document of dying declaration, its contents and in particular the names of the 10 offender/s and the role played by them in committing the offence of murder is not proved unless such witness or Magistrate vouchsafes before the trial court as to whom did the dying person named offenders. 12. The learned Counsel for the appellant also placed reliance on the observations made in the judgment delivered by the Division Bench of this Court wherein one of us (Hon’ble Shri Justice P.V.Hardas ) was a member, in the case of “Laxmibai w/o Maruti Satpute & Ors. Vs. State of Maharashtra”, reported at 2010 ALL MR (Cri) 182, wherein, it is observed that dying declaration recorded before Naib Tahsildar but none of the witnesses for dying delcaration stated that how the incident had occurred as per narration of the deceased, hence so called dying declaration cannot be said to be proved as required by law. 13. Accordingly, P.W.4 Head Constable Sahebrao Patil nowhere stated in his deposition the very version of victim Rekha and it has nowhere come in evidence how deceased Rekha sustained burn injuries and who was the offender and since P.W.4 Head Constable Sahebrao Patil has not testified in that respect, the dying declaration (Exh.26) cannot be construed as incriminating evidence against the appellant herein to connect him with the alleged crime punishable under Section 302 of the Indian Penal Code. 11 14. Apart from that it is seen that there is no endorsement of Medical Officer prior to recording of said dying declaration (Exh. 26) and, therefore, it is amply clear that P.W.4 Head Constable Sahebrao Patil did not obtain the endorsement of the Medical Officer prior to recording of the statement of the victim in respect of her fitness to give the statement and, therefore, the said dying declaration (Exh.26) comes under the cloud of suspicion. Moreover, the prosecution has not given the plausible explanation in respect of the vital aspect that although P.W.4 Sahebrao Patil received the information at about 1.00 p.m. on 10.5.2008 from the Medical Officer about sustaining the injuries by the victim Rekha but he recorded the dying declaration of the victim after about four hours i.e. at about 5.00 to 5.15 p.m. and the said inaction on the part of the prosecution also diminishes the credibility of the dying declaration (Exh.26). 15. That takes us to the oral dying declaration allegedly made by victim Rekha before her mother, P.W.1 Kalpana Pardeshi. P.W. 1 Kalpana Pardeshi has stated that deceased Rekha alias Rakhi was her daughter and appellant Sunil is husband of her daughter and her daughter Rekha alias Rakhi and accused are residing at Gondegaon. Out of the said wedlock two daughters were blessed them. She also stated that the accused persons were taking doubt upon the character of her daughter Rekha by saying that 12 she was having illicit relations with one Manoj. She further stated that incident occurred on 10.5.2008 at about evening time and she received a phone call of brother of her husband who informed that her daughter sustained burn injuries and she was admitted in the hospital. She also stated that she was not feeling well and, therefore, on next day she and her husband went to Ghati hospital at Aurangabad and met their daughter who had sustained the burn injuries. She further stated that her daughter told her that accused persons were not providing food to her and they were doubting about her fidelity and, therefore, her husband had poured kerosene on her person and set her on fire. She also stated that when her daughter made the said statement before her she was in conscious condition and was able to talk in the hospital. 16. During cross-examination P.W.1 Kalpana Pardeshi stated that when her daughter told her that her husband Sunil set her on fire at that time she felt it necessary to lodge report about the said incident. She further stated that 2/3 days after the death of her daughter she made the statement before the Police. The omission was elicited in the cross-examination in respect of receipt of phone call from elder brother of her husband on 10.5.2008 informing them about sustaining burn injuries by Rekha on that day and since she was not feeling well, on the next 13 day she and her husband went to Ghati hospital at Aurangabad and same has been duly proved by confronting it to the Investigating Officer. She also stated in the cross-examination that she cannot assign the reason as to why the contents of portion marked “A” of her statement are mentioned in the statement recorded by the Police. 17. As regards the alleged oral dying declaration made by deceased Rekha before her mother P.W.1 Kalpana Pardeshi, the learned Counsel for the appellant submitted that there was unexplained delay of 80 days in recording the statement of P.W.1 Kalpana Pardeshi by the Police personnel. Since the date of incident is 10.5.2008 and the victim allegedly made oral dying declaration before her mother P.W.1 Kalpana Pardeshi on 11.5.2008 but the statement of P.W.1 Kalpana Pardeshi came to be recorded on 30.7.2008 and the prosecution has not given any convincing explanation for the said delay and, therefore, it is submitted that the said unexplained delay hampers the oral dying declaration of victim made before the P.W.1 Kalpana Pardeshi. It is also canvased that the written dying declaration (Exh.26) was recorded at about 5.00 to 5.15 p.m. on 10.5.2008 whereas the alleged oral dying declaration was made by victim Rekha before he mother P.W.1 Kalpana Pardeshi on 11.5.2008 and there is delay of about nine hours therein and no plausible explanation 14 has been given by the prosecution in that respect. It is also canvased by learned Counsel for the appellant that the statement made by P.W.1 Kalpana Pardeshi that after receipt of phone call from the elder brother of her husband that her daughter sustained burn injuries, she and her husband visited the hospital on the next day since she was not feeling well, is not digestible firstly and secondly the said contents amounted as omission in the cross-examination which was duly proved confronting to the Investigating Officer and, therefore, it is also submitted that the alleged oral dying declaration made by deceased Rekha before her mother P.W.1 Kalpana Pardeshi comes under the suspicison. 18. The learned Assistant Public Prosecutor supported the said oral dying declaration made by deceased Rekha before her mother P.W.1 Kalpana Pardeshi and also supported the finding of trial Court in that respect in paragraph Nos.19 and 20 of the judgment. 19. Considering the rival submissions, we are of the considered view that the submissions advanced by learned Counsel for the appellant bear substance and the unexplained delay of 80 days in recording the statement of P.W.1 Kalpana Pardeshi as mentioned hereinabove sustained fatal blow to the oral dying declaration allegedly made by deceased Rekha before her mother 15 P.W.1 Kalpana Pardeshi and, therefore, the said alleged oral dying declaration made by the deceased Rekha before her mother P.W. 1 Kalpana Pardeshi cannot be construed as incriminating piece of evidence against the appellant herein to connect him with the alleged crime for the offence punishable under Section 302 of the Indian Penal Code. 20. As regards the charge leveled under Section 498-A of the Indian Penal Code against the appellant herein, P.W.1 Kalpana Pardeshi i.e. mother of the deceased Rekha has made certain allegations against the appellant in respect of cruelty but the said allegations are omnibus and do not appear to be the harassment to deceased with a view to coercing her to meet any unlawful demand. Moreover, P.W.2 Amrut Garud, Member of Tanta Mukti Samiti had also stated in his deposition that there is a dispute between Rekha and her husband i.e. appellant herein in their matrimonial life and he has categorically stated that appellant- accused Sunil had only given application for co-habitation of his wife and it has come in the evidence that the said Tanta Mukti Samiti had settled the said matrimonial dispute and beyond that there is nothing in the deposition of Amrut Garud to take the prosecution case further in constructive manner to connect the appellant for the offence punishable under Section 498-A of the Indian Penal Code. 16 21. That takes us to deposition, the testimony of P.W.3 Dr.Sadhana who has deposed that she conducted the post mortem on the dead body of deceased Rekha on 2.7.2008 and she found following injuries on her person such as : Multiple patches of 5 to 10 cm x 2.5 cm. size yellow with green colour having foul smelling and also noticed on the burn areas over both upper limbs and lower limbs and area below umbilicus and area lateral and lower side of right chest. Suggestive of secondary infection. She stated that the above injuries had been caused by burns. According to her cause of death of deceased was due to terminal cardio respiratory failure due to deep burns due to septicemia and she produced the post mortem notes at Exh.24. The alleged incident occurred on 10.5.2008 and it has come in the evidence that deceased was discharged from the hospital and she was at her parents’s house and she expired there on 2.7.2008 i.e. after about one and half months. The testimony of P.W.3 Dr.Sadhana spells out the suggestive of secondary infection which also speaks for itself. 22. Having the comprehensive view of the matter and after assessing the oral, documentary and medical evidence adduced and produced by the prosecution and also considering the 17 submissions advanced by the learned Counsel for the parties, we are of the considered view that the conviction and sentence inflicted on the appellant herein by the judgment and order rendered by learned Additional Sessions Judge, Aurangabad in Sessions Case No.315/2008 on 8.10.2009 shall not sustain and the appellant herein is entitled for the benefit of doubt and, therefore, the said judgment and order deserves to be quashed and set aside allowing the present appeal. 23. In the result, present Criminal Appeal is allowed and the judgment and order dated 8.10.2009 rendered by the Additional Sessions Judge, Aurangabad, in Sessions Case No.315/2008 stands quashed and set aside and appellant is acquitted of the offences punishable under Sections 302 and 498-A of the Indian Penal Code. The appellant be set at liberty forthwith, if not required in any other case. Fine, if paid by the appellant be refunded to him. ( SHRIHARI P.DAVARE ) ( P.V.HARDAS ) JUDGE JUDGE (vvr/criapeal583.09) 18