1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.53 OF 2008 Jawarilal Morsing Naik Age 30 years, Occ. Labour, R/o Godri Tanda, Taluka Jamner, District Jalgaon ... APPELLANT VERSUS State of Maharashtra (Copy served on the Public Prosecutor, High Court, Bench at Aurangabad) ... RESPONDENT ----- Shri Vijay Sharma, Advocate for the appellant Shri S.D. Kaldate, A.P.P. for respondent ----- CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. DATED : 8th January, 2010. ORAL JUDGMENT (PER DAVARE, J.) 1. The challenge in this appeal is to the conviction and sentence awarded to the appellant by learned Additional Sessions Judge, Jalgaon in Sessions Case No.47/2003 on 14.6.2004, thereby convicting the appellant (original accused No.1) for the offence punishable under Section 302 of the Indian Penal Code 2 and sentencing him to undergo life imprisonment and to pay fine of Rs.3000/-, in default to undergo R.I. for three months more. 2. The factual matrix are as follows: The appellant i.e. original accused Jawarilal is son of accused No.2 Nawasabai and deceased Babibai was her daughter-in-law through her another son. The houses of accused Nos.1 and 2 and the house of deceased Babibai as well as house of her parents were situated nearby each other at Godri Tanda, Taluka Jamner, District Jalgaon. It is alleged that on 2.1.2003 at about 8.30 a.m., the accused No.2 Nawasabai came to the house of father of deceased Babibai and she was alone at that time and the accused No.2 Nawasabai made allegations against deceased Babibai that since she came to them her daughter was facing harassment from her in-laws. It is alleged that, on the said count quarrel took place between them. It is further alleged that at this juncture, the appellant (original accused No.1) Jawarilal arrived there and poured kerosene on the person of deceased Babibai and set her ablaze. Thereupon the victim Babibai shouted and thereafter her mother came and extinguished the fire. Thereafter the victim Babibai was first taken to Pahur Government Hospital and then she was shifted to Civil Hospital, Jalgaon for medical treatment. 3 3. It is the case of prosecution that on 2.1.2003 i.e. on the same day of incident at about 2.00 to 2.30 p.m., dying declaration of victim Babibai was was recorded by P.W.5 A.P.I. Shaikh Dawood of Jilha Peth Police Station, Jalgaon, which was treated as F.I.R. and P.W.6 A.P.I. Rajaram Mandge, who was attached to Pahur Police station at the relevant time, received the case papers from Jilha Peth Police Station, Jalgaon on 3.1.2003 and on that basis he registered the crime at Pahur Police Station under Crime No.2/2003 on 3.1.2003. Accordingly P.W.6 A.P.I. Mandge took out the further investigation and visited the spot of incident and prepared the spot panchanama (Exhibit 29). He also recorded statements of some witnesses on 5.1.2003. The victim Babibai died in the hospital. Thereafter the dead body of victim Babibai was sent to hospital for post mortem purpose. Hence P.W.6 A.P.I. Mandge recorded supplementary statements of some of the witnesses. He also collected post mortem notes which are produced at Exhibit 31. Moreover, P.W.6 A.P.I. Mandge sent the seized articles to Chemical Analyser’s Office along with forwarding letter (Exhibit 30). Accordingly, after completion of investigation, P.W.6 A.P.I. Mandge filed a charge sheet before Judicial Magistrate, First Class, Jamner on 25.2.2003. Thereafter, since the offences were triable by the Court of Sessions, the learned Judicial Magistrate, First Class, Jamner committed the 4 case to the Court of Sessions, Jalgaon and the said case was numbered as Sessions Case No.47/2003. Thereafter the learned Additional Sessions Judge, Jalgaon framed the charge against the appellant (original accused No.1) and accused No.2 for the offences punishable under Sections 302, 498, 504 read with Section 34 of the Indian Penal Code at Exhibit 7 and both the said accused faced the trial for the offences punishable under the said charges. The statements of both the accused were recorded under Section 313 of the Code of Criminal Procedure. The defence of both the accused was of alibi that they were out of station at the relevant time of incident and they have been implicated in the present case falsely. 4. To substantiate the charges levelled against the accused Nos.1 and 2, the prosecution has examined inasmuch as 9 witnesses as mentioned below. P.W.1 Sanjay Jadhav- panch for spot panchanama- turned hostile. P.W.2 Pratap Rathod- Another panch of spot panchanama (Exhibit 29)- turned hostile. P.W.3 Premsing Rathod- father of deceased Babibai- turned hostile. P.W.4 Smt. Bindabai Premsing Rathod- mother of deceased Babibai- turned hostile. 5 P.W.5 Shaikh Shabbir Dawood, who recorded dying declaration of the victim Babibai (Exhibit 27). P.W.6 A.P.I. Rajaram Mandge- investigating officer. P.W.7 Dr. Pandhari Bawaskar- p.m. doctor who issued post mortem report (Exhibit 31). P.W.8 Dr. Kiran Patil- Medical Officer who gave endorsement on dying declaration (Exhibit 27). P.W.9 Police Constable Ravindra More who took the muddemal articles to Chemical Analyser’s Office. 5. In defence, the appellant has examined two defence witnesses viz. P.W.1 Ishwar Hari Chavan- Rickshaw Driver, who allegedly took the victim to hospital and P.W.2 Lakhichand Jadhav to support the plea of alibi of appellant. 6. Before we advert to the submissions made by learned counsel for the parties, we feel it necessary to scrutinize the oral and documentary evidence adduced and produced by the parties, and in the said context, it is material to note that P.W.1 Sanjay Jadhav and P.W.2 Pratap Rathod both the panch witnesses to the spot panchanama turned hostile and did not support to the case of prosecution and, therefore, said spot panchanama was produced by prosecution through P.W.6 A.P.I. Rajaram Mandge, which is marked as Exhibit 29. It is also 6 significant to note that P.W.3 Premsing Rathod i.e. father of the victim Babibai and P.W.4 Smt. Bindabai Premsing Rathod i.e. mother of deceased Babibai also did not support to the case of prosecution and turned hostile. The learned A.P.P. conducted cross-examination of both the said witnesses and contents of portion marked ‘A’ and ‘B’ was taken out as contradictions in the testimony of P.W.3 and contents of portion marked ‘A’ was taken as contradictions in the testimony of P.W.4. However, both the said portion marks were not confronted to the investigating officer and were not duly proved and, therefore, cannot be construed as contradictions in their respective testimonies and resultantly the testimony of P.W.3 Premsing Rathod and P.W.4 Bindabai Premsing Rathod do not support the case of prosecution. 7. That takes us to the deposition of P.W.5 A.P.I. Shaikh Shabbir Dawood, who stated that he was attached to Jilha Peth Police Station, Jalgaon on 2.1.2003 and in pursuance of issuance of memorandum (Exhibit 26) by P.S.O., he proceeded to Civil Hospital, Jalgaon for recording statement of victim Babibai and met Dr. Patil (P.W.8), C.M.O., who examined the said patient and endorsed that the said patient was fit to give the statement. Accordingly, P.W.5 A.P.I. Shaikh Shabbir Dawood deposed that he made enquiry with the said patient victim Babibai and asked her how she sustained the burn injuries and thereupon she stated 7 that when she was at home at about 8.30 a.m. on 2.1.2003 and when she was cooking, accused No.2 came in house and said that since victim Babibai joined their family, the in-laws of her daughter were not treating her properly and, therefore, accused No.2 abused victim Babibai and quarreled with her. P.W.5 also deposed that on enquiry victim Babibai further stated that when the said quarrel was going on, the appellant (accused No.1) came there and he poured kerosene on the person of victim and set her on fire and thereupon she shouted for help and at that time her mother came there and extinguished the fire and appellant ran away and thereafter she took her to the hospital. P.W.5 Shaikh Shabbir Dawood further stated that he recorded the statement to that effect and and read out the contents thereof to victim which she admitted to be correct and thereafter he obtained her thumb impression thereon which is produced at Exhibit 27. 8. During cross-examination, P.W.5 Shaikh Shabbir Dawood stated that he did not write the time required for recording the said statement in the said dying declaration. He also admitted that he has not obtained the certificate of Medical Officer on completion of the said statement that patient was conscious throughout recording the statement. He further stated that he knew that there were Executive Magistrates and Court of Judicial Magistrate, First Class at Jalgaon but he did not call any 8 of them for recording dying declaration and hence, suggestion was given to him that he prepared the false dying declaration to implicate the accused, but same was denied by him. 9. After considering the testimony of A.P.I. Shaikh Shabbir Dawood and on perusal of the contents of dying declaration (Exhibit 27), it is material to note that the place of alleged incident referred in the dying declaration (Exhibi 27) as well as in the deposition of P.W.5 A.P.I. Shaikh Shabbir Dawood is the house of victim Babibai whereas the spot panchanama (Exhibit 29) discloses the place of incident as the house of P.W.3 Premsing Rathod i.e. father of victim Babibai and prosecution has not given any plausible explanation for the said discrepancy and, therefore, it sustains fatal blow to the case of prosecution. 10. Besides, admittedly the alleged incident occurred on 2.1.2003 in the morning at about 8.30 a.m. and further admittedly the victim Babibai expired on 5.1.2003 and, therefore, it is crystal clear that there was ample time of three days in the hands of police personnel to call Special Executive Officer and to record dying declaration of the victim Babibai through Special Executive Officer. Moreover, P.W.5 A.P.I. Shaikh also admitted that although he was aware that there were Executive Magistrates and Court of Judicial Magistrate, First Class at Jalgaon, he did not call any of 9 them for recording dying declaration of victim Babibai. Hence, resultantly the fact remains that there is dying declaration (Exhibit 27) on record which is recorded by police personnel i.e. P.W.5 A.P.I. Shaikh Shabbir Dawood and although as stated hereinabove, the investigating agency had sufficient time to call Special Executive Officer to record dying declaration of victim Babibai, the investigating agency failed to do so. 11. The learned counsel for the appellant placed reliance on the case of Shaikh Rafiq & anr. Vs. State of Maharashtra (AIR 2008 SUPREME COURT 1362), in which it is held that : “Dying declaration was recorded by police officer and although Special Executive Magistrate was available, he was not summoned, as well as certificate from Medical Officer to the fitness and consciousness of declarant was not taken and also time of recording of declaration was not recorded. Hence, it was observed that such declaration cannot be relied upon”. 12. The learned counsel for the appellant also placed reliance on the case of Cherlopalli Cheliminabi Saheb and another Vs. State of A.P. (AIR 2003 SUPREME COURT 1014), in which it is held that: 10 “Dying declaration recorded by Police Inspector in hospital and Magistrate residing near hospital was not called and also the deceased did not explain the nature of attack on him in dying declaration and further there is correction in regard to nature of weapon used and also thumb impression by using grease of motorcycle and not ink pad taken on the dying declaration and, therefore, it was held that dying declaration was not genuine and cannot be relied upon or basing the conviction more particularly when all other witnesses turned hostile.” 13. Applying the parameters of the observations made by Hon’ble Supreme Court in the aforesaid cases in the instant case, as discussed hereinabove, although sufficient time was available at the disposal of the investigating agency from 2.1.2003 to 5.1.2003 to record dying declaration of deceased Babibai through Special Executive Officer, such dying declaration through Special Executive Officer of deceased Babibai was not recorded and even the other witnesses of spot panchanama, and more particularly, the parents of deceased Babibai turned hostile and did not support the case of prosecution and further more there is vital discrepancy of place of incident as stated in the dying declaration (Exhibit 27) and the deposition of P.W.5 A.P.I. Shaikh and the place of incident stated in the spot panchanama (Exhibit 29) as mentioned hereinabove, the dying declaration (Exhibit 27) which was recorded by police personnel i.e. P.W.5 A.P.I. Shaikh, cannot 11 be construed and relied as the sole basis to inflict the conviction against the appellant herein. The said aspect is strengthened by the further admission given by P.W.5 A.P.I. Shaikh that he did not write the time required for recording statemnet in the dying declaration (Exhibit 27) as well as he has not obtained the certificate of Medical Officer on completion of dying declaration that victim Babibai was conscious throughout recording of the said statemnt and the said lacunae also diminishes the credibility of the said dying declaration, and therefore also, the said dying declaration (Exhibit 27) cannot be taken as the sole basis to slam the conviction against the appellant herein. 14. Moreover, P.W.7 Dr. Pandhari Bawaskar has deposed that he performed the post mortem on the dead body of Babibai on 5.1.2003 at Civil Hospital, Jalgaon and further stated that Babibai died due to septisemia due to 94% deep burns and accordingly he issued post mortem report which is produced at Exhibit 31. On perusal of contents of post mortem report (Exhibit 31), it also discloses the cause of death due to septisemia due to 94% deep burns and hence, there cannot be any dispute that victim Babibai succumbed to homicidal death. 15. After scrutinising and assessing the material oral and documentary evidence and having the comprehensive view of the 12 matter, we are of considered view that the prosecution has failed to establish the nexus between the appellant herein and the alleged crime and the sole dying declaration (Exhibit 27) with its discrepancies and lacunae as discussed hereinabove cannot be construed as sole basis to convict the appellant herein and hence, we are inclined to allow the present appeal and, therefore, the conviction and sentence rendered by learned Additional Sessions Judge, Jalgaon in Sessions Case No.47/2003 by judgment and order dated 14.6.2004 deserves to be quashed and set aside by allowing the present appeal. 16. Accordingly, this Criminal Appeal is allowed and conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offences with which he was charged and convicted. Fine if paid by the appellant be refunded to him. Since the appellant is in jail, he be released forthwith if not wanted in any other case. [SHRIHARI P. DAVARE, J.] [P.V. HARDAS, J.]