Cr.Appeal/243/2010 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.243 OF 2010 1.Walmik Laxman Raipalle, Age 33 years, Occ. Nil, R/o Whatti No.1, Taluka Renapur, Dist. Latur. 2.Sau.Sojarbai Laxman Raipalle, Age 63 years, Occ. Nil, r/o Whatti No.1, Taluka Renapur,Dist. Latur. ..Appellants Versus State of Maharashtra ..Respondent ... Advocate for Appellants : Shri R.D.Biradar APP for Respondent : Shri N.R.Shaikh ... CORAM : A.H.JOSHI & A.R.JOSHI, JJ. Dated : September 23, 2011 ORAL JUDGMENT : (Per A.R.JOSHI, J.) :- 1. Heard rival submissions for sometime on this Criminal Appeal, preferred by both the appellants/accused, challenging the judgment and order of conviction dated 15.3.2010, passed by the learned Ad-hoc Additional Sessions Judge-3, Latur in Sessions Case No.59 of 2009. 2. By the impugned judgment and order, both Cr.Appeal/243/2010 2 the appellants were convicted for the offences punishable under Sections 302 read with 34 of Indian Penal Code (“IPC” for brevity) and were sentenced to suffer imprisonment for life and to pay fine of Rs. 3,000/- each, and in default of payment of fine, to undergo rigorous imprisonment for three months each. They were acquitted of the offence punishable under Section 498-A read with 34 of IPC. The State of Maharashtra did not challenge the acquittal for the said offence. 3. Briefly stated, the facts of the case are as under:- Victim Mira was married hardly six moths prior to the date of incident. Marriage between victim Mira and accused No.1 was solemnized on 11.3.2009 and the incident of burning victim Mira, at her matrimonial house, occurred on 4.9.2007 at about 8.00 p.m. The incident happened at village Whatti No.1, Taluka Renapur, District Latur, in the house of the accused, where victim Mira was staying along with her husband and her mother-in-law i.e. both the accused. Cr.Appeal/243/2010 3 4. Allegedly, victim Mira was subject to ill- treatment and harassment at the hands of her husband and mother-in-law and she used to tell such ill- treatment to her father PW 1 Tanaji Rajwade. On the fateful day i.e. 4.9.2007, in the afternoon, some incident happened when accused No.2 assaulted and slapped victim Mira on account of the alleged negligence of victim Mira, as certain grocery article (green gram) put for drying under the sun was eaten by a stray cattle. This incident was subsequently narrated by accused No.2 to accused No. 1 on his arrival at home. Allegedly, on account of this circumstance, the main incident of setting victim Mira on fire, by pouring kerosene on her person, occurred at about 8.00 p.m. in the house. 5. In the said incident of burning, both the accused took part. However, apparently, victim Mira was taken to Civil Hospital, Latur by the accused persons. An intimation was given to the parents of victim Mira on the next day. PW 1 Tanaji – father of victim Mira, arrived at the hospital and had a talk with her. Allegedly, she gave oral dying declaration before him, narrating the incident as to Cr.Appeal/243/2010 4 what had happened on the afternoon of 4.9.2007 and subsequent event of setting her on fire by pouring kerosene, by both the accused. 6. An intimation was given to the police station regarding admission of the then injured victim Mira. She had sustained 65 per cent burn injuries and was under treatment in the hospital. Police arrived on the spot and PW 3 Chandrakant Suryawanshi, Police Station Officer attached to Latur Police Station and on duty at Civil Hospital, Latur recorded the statement of victim Mira. It was recorded at about 10.45 p.m. or so. According to the said witness, he intimated to Police Station and offence was registered, initially, for the offence under Sections 307 read with 34 of the IPC against both the accused. 7. According to PW 3 Chandrakant Suryawanshi, he gave requisition to PW 4 Goroba Suryawanshi, Special Executive Magistrate to come and record the statement of victim Mira. However, the factual position is that said PW 4 Goroba Suryawanshi attended the hospital on intimation from the police Cr.Appeal/243/2010 5 and recorded the dying declaration of victim Mira. Admittedly, said dying declaration is first in point of time and it was recorded from 10.00 p.m. to 10.30 p.m. on 5.9.2007, which is admittedly, prior to the recording of statement by PW 3 Chandrakant Suryawanshi, PSO. 8. While under treatment, victim Mira succumbed to the injuries and as such offence punishable under Section 302 of IPC was inserted in the charge sheet. On the death of victim Mira, inquest panchanama was conducted. Post mortem report was obtained and after recording of statements of the witnesses, charge sheet was filed and the case was committed to the Court of Sessions. 9. Mainly, the case of prosecution revolves around the oral dying declaration given to PW 1 Tanaji, father of victim Mira, first written dying declaration Exhibit 37 recorded by PW 4 Goroba Suryawanshi and second dying declaration Exhibit 32 recorded on the same night by PW 3 Chandrakant Suryawanshi, PSO. Cr.Appeal/243/2010 6 10. We have gone through the substantive evidence of the prosecution witnesses and mainly the evidence of PW 1 Tanaji, PW 3 Chandrakant Suryawanshi and PW 4 Goroba Suryawanshi on the aspect of oral and written dying declarations. 11. We have also gone through the substantive evidence of PW 8 Dr.Bhimrao Patil, who was then attached as a Medical Officer to Civil Hospital, Latur and who happened to give endorsement and his opinion as to the fitness of victim Mira to give statement. We have also gone through the contents of the medical history papers of the patient which are at Exhibit 50 before the trial Court. Apparently, said documents were produced during the course of cross-examination of the medical witness. 12. On going through the evidence as mentioned above, what is found is as under:- (1) There is no establishment of ill- treatment or harassment of victim Mira at the hands of the accused, inasmuch as attracting the provisions of Section 498-A of the IPC. Consequently, there is no error committed by the trial Court in Cr.Appeal/243/2010 7 acquitting the accused persons for the said offence. (2) Victim Mira had suffered 65 per cent burn injuries and could meet her father PW 1 Tanaji only on the next day, when she was all along under treatment and prior to that on earlier night, her two dying declarations were allegedly recorded. (3) As per the substantive evidence of PW 3 Chandrakant Suryawanshi, he recorded the statement Exhibit 32 given by victim Mira and then gave intimation to special Executive Magistrate for recording the statement, whereas PW 4 Goroba Suryawanshi allegedly recorded the statement from 10.00 p.m. to 10.30 p.m. whereas, the timings on the statement recorded by PW 3 Chandrakant Suryawanshi are from 10.45 p.m. To 11.15 p.m. (4) The timings in both these dying declarations - Exhibits 37 and 32 - are appearing in the endorsements given by PW 8 - Dr.Patil. (5) The contents of Exhibit 50, medical case papers of the victim, do indicate the status of the victim while under treatment and as to the medicines administered to her. Cr.Appeal/243/2010 8 13. The contents of the medical papers give a different story as to the condition of the victim while under treatment from the night of 4.9.2007 till her death on 1.10.1997. These contents are to be seen in juxtaposition of the evidence of attending Doctor PW 8 - Dr.Patil as to the condition of the patient. According to PW 8 - Dr.Patil, as per his endorsement, victim Mira was able to give the statements at both times i.e. at 10.00 p.m. and also at 10.45 p.m. when the respective dying declarations Exhibits 37 and 32 were recorded by PW 4 Goroba Suryawanshi and PW 3 Chandrakant Suryawanshi. As against this, it is seen from the medical papers and from the endorsements of the relatives of victim Mira, that condition of victim was very serious since the time of her admission in the hospital and it continued even on subsequent days. We have seen the endorsement having the thumb impressions of relatives of the victim namely, Devidas and Pintu. It was to the effect that the condition of victim was very serious and it was made known to them by the attending Doctors. This Cr.Appeal/243/2010 9 endorsement was made immediately on admission of the patient in the hospital at 1.30 a.m. on 5.9.2007. 14. Thereafter, there is another endorsement, seen by us, which is having thumb impression of the present accused No.2 – mother-in-law of the victim, mentioning that the condition of the patient was very serious, as stated by the Doctors. This endorsement is dt. 5.9.2007 and timing is 10.00 p.m. The timing of the said endorsement is very significant, inasmuch as, at the same time there was an endorsement given by PW 3 Dr.Patil, attending Medical Officer, that the patient was fit to give the statement, when PW 4 Goroba Suryawanshi, Special Executive Magistrate recorded the statement. 15. We have also seen that after the endorsement as to the condition of the patient as serious at 10.00 p.m. on 5.9.2007, there is another endorsement by the attending Doctor of the same time to the effect:- “Patient conscious, oriented and is able to give oral statement. Statement taken by the Magistrate. Statement started at 10.00 p.m. Finished at 10.30 p.m.” Cr.Appeal/243/2010 10 After this endorsement, we have seen that on 6.9.2007 at 10.35 a.m. there is another endorsement, bearing the thumb impression of the mother of the victim, again mentioning that the condition of the patient is very serious. Similar endorsements are appearing in the medical papers on 7.9.2007 at 7.45 p.m., 8.9.2007 at 12.30 p.m. and 10.9.2007. 16. Considering these endorsements, in our view, the reasonable doubt has been created as to whether the patient was fully conscious and oriented and was able to give statements giving all the details as to the incident happened in the afternoon of 4.9.2007 and subsequent main event, happened on the same night. In that view of the matter, we must say that the learned trial Judge had erred in appreciating the said documentary evidence vis-a-vis the substantive evidence of the prosecution witnesses PW 1 Tanaji Rajwade, PW 3 Chandrakant Suryawanshi and PW 4 Goroba Suryawanshi. 17. Moreover, at the cost of repetition, it must be said that the learned Sessions Judge had not Cr.Appeal/243/2010 11 appreciated the veracity in the timings of recording of the statements, when according to PW 3 Chandrakant Suryawanshi, after he recorded the statement, he intimated the Special Executive Magistrate to record the statement, whereas, the documents show otherwise. 18. On this factual position, the benefit of doubt should have been given in favour of the accused but it was not so given. Learned Sessions Judge had fallen in an error in appreciating the evidence and coming to the conclusion that the prosecution has established the guilt of the accused beyond reasonable doubt, mainly, when the case of the prosecution rests only on the dying declarations. 19. It is an admitted position that there are no independent witnesses examined, though the incident occurred on the night of 4.9.2007 and when neighbours were available and when admittedly, there was no material to establish the charge punishable under Section 498-A of the IPC. Cr.Appeal/243/2010 12 20. In view of this, there is every reason to interfere with the judgment and order of conviction and hence the present appeal is disposed of with the following order. ORDER Criminal Appeal No.243 of 2010 is allowed. The judgment and order of conviction of both the appellants/accused, passed by the Ad-hoc Additional Sessions Judge-3, Latur in Sessions Case No.59 of 2010 dated 15.3.2010 is set aside. Both the appellants/accused are acquitted of the offences charged with. They be set at liberty forthwith, if not required in any other crime. Their bail bonds, if any, stand cancelled. Fine amount, if any, deposited by them, be refunded. (A.R.JOSHI, J.) (A.H.JOSHI, J.) ... akl