1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.233 OF 2008 Waman s/o Shivajibuwa Bharti, Age 36 years, Occu.Tailor, R/o Pimpla, Taluka and District Parbhani (At present in jail custody) .. APPELLANT (Orig. Accused No.1) VERSUS State of Maharashtra Through Police Station Officer, Police Station, Parbhani Rural, District Parbhani .. RESPONDENT Shri S.S.Rathi, Advocate for the appellant Shri K.J.Ghute Patil, Assistant Public Prosecutor for respondent- State CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ DATE : 5th March 2010 ORAL JUDGMENT (PER P.V.HARDAS, J.) 1. The appellant who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.5,000/-, with a default condition of undergoing further imprisonment for one year in the event of non payment of fine, by the Sessions Judge, Parbhani, by judgment dated 21.5.2008, in Sessions Trial No.2/2008, by this appeal questions the correctness of his conviction and sentence. 2 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. P.W.7 A.S.I. Mohd.Bashir who was attached to Police Station Nanalpeth received the M.L.C. at Exhs.39 and 40. After receiving the M.L.C.s, P.W.7 A.S.I. Mohd.Bashir went to the Civil Hospital and contacted the Medical Officer on duty and requested the Medical Officer to ascertain the condition of the injured for recording the dying declaration. Accordingly, P.W.15 Dr.Mohd.Zafar Mohd.Iqbal examined the patient viz. injured Ratnamala and certified that she was in a fit condition to give her statement. Accordingly, P.W.7 A.S.I. Mohd.Bashir recorded the statement of the injured at Exh.41. He read over the contents of the statement to the injured and obtained her thumb impression. Thereafter he forwarded the statement of the injured at Exh.41 along with his report and the M.L.C.s to the Parbhani Police Station (Rural). The report of P.W.7 A.S.I.Mohd.Bashir is at Exh. 42. It appears that on the basis of statement of the injured at Exh.41, an offence vide Crime No.28/2006 came to be registered, under Section 307, 323 by P.W.14 Police Head Constable Samimoddin Faruqui. After Ratnamal had succumbed to her injuries, the inquest panchnama came to be drawn by P.W.7 A.S.I. Mohd.Bashir at Exh.30. He forwarded all the papers to the Parbhani Police Station including the statement of father of 3 Ratnamala. It appears that P.W.14 Police Head Constable Samimoddin Faruqui had drawn the scene of the offence panchnama at Exh.31 in the presence of panchas. Thereafter he recorded the statements of witnesses and arrested accused 2 and 3 on 29.3.2007. After demise of Ratnamala he added Section 302 of the Indian Penal Code and further investigation came to be handed over to P.S.I. Gavate. P.W.12 P.S.I. Gavate on being entrusted with the investigation on 30.3.2007, recorded the statements of witnesses on 31.3.2007. On 5.4.2007, statement of P.W.10 Sarika, daughter of Ratnamala and the appellant came to be recorded. On 3.5.2007 the appellant came to be arrested. During custodial interrogation the appellant expressed his willingness to point out the place where certain articles were kept by him. Accordingly, the memorandum came to be drawn. The appellant led the Police and the panchas to his house and discovered a match box, one burnt trouser which came to be seized under seizure memo at Exh.37. The seized articles came to be referred to the Chemical Analyzer, Aurangabad on 29.5.2007, along with a requisition at Exh.49. Further to the completion of investigation a charge-sheet against the appellant and the other accused came to be filed. 3. On committal of the case to Court of Sessions, the trial Court vide Exh.11 framed a charge against the appellant and 4 other accused for offence punishable under Section 302, 498-A read with sec.34 of the Indian Penal Code. The appellant and the other accused denied their guilt and claimed to be tried. The main stake of the prosecution case revolves round the dying declarations at Exh.24 and Exh.41 recorded by P.W.2 Satish Soni, a Naib Tahsildar and P.W.7 A.S.I. Mohd.Bashir. The prosecution also relied upon the oral dying declarations made to the relatives of Ratnamala as well as the testimony of P.W.10 Sarika who was set up as an eye witness by the prosecution. The trial Court relied upon the written dying declaration at Exh.24 and Exh.41, while choosing not to place any reliance on the testimony of P.W. 10 Sarika, convicted the appellant for the aforesaid offence while acquitting the other two accused. Hence, the present appeal. 4. At the outset, we propose to deal with the two dying declarations at Exh.24 and Exh.41. As pointed out by us above, Exh.41 came to be recorded by P.W.7 A.S.I. Mohd.Bashir on 27.7.2007 on the basis of the two M.L.C.s which he had received. Injured Ratnamala at that point of time was examined by P.W.15 Dr.Mohd.Zafar Mohd.Iqbal who had certified that injured Ratnamala was in a fit condition to give her statement. Unfortunately, in his examination-in-chief P.W.7 A.S.I. Mohd.Bahir had not proved the written dying declaration at Exh.41. All that he deposed regarding recording of dying declaration without 5 recording a single word what was told to him by injured Ratnamala. In respect of dying declaration at Exh.24, prosecution has examined P.W.2 Satish Soni, a Naib Tahsildar, who had recorded the dying declaration at Exh.24 on 28.3.2007. P.W.2 Satish Soni states that he had received a communication from Police Station, Nanalpeth for recording the dying declaration of Ratnamala and accordingly had visited the Civil Hospital at Parbhani at 10.15 p.m. The Medical Officer had examined the patient and had informed that the patient was not fit to give her statement. Accordingly, he visited the hospital again on the next day and the Medical Officer after examining the patient opined that Ratnamala was in a fit condition to give her statement. He accordingly recorded the statement of Ratnamala at Exh.24. This witness also states about only the recording of the statement of Ratnamala at Exh.24 without alluding to the contents of the statement. In other words, this witness has also not proved the contents of the dying declaration at Exh.24. Shri Rathi, learned Counsel for the appellant has invited our attention to the judgment of the Division Bench of this Court in “Deorao s/o.Sonbaji Bhalerao & Anr. Vs. State of Maharashtra”, 2008 ALL MR (Cri) 1921 and the Division Bench Judgment of this Court in “Jivan Tulsiram Dhavali & Anr.Vs. State of Maharashtra”, 2008 ALL MR (Cri) 2018. In the aforesaid judgments of the Division Bench of this Court, the Division Bench 6 had held that unless and until the scribe deposes about the contents of the dying declaration viz., what was narrated to him by the declarant, the dying declaration cannot be said to have been proved. Relying on the aforesaid judgments of the Division Bench of this Court, the another Division Bench of this Court, in “Laxmibai w/o.Maruti Satpute & Ors. Vs. State of Maharashtra”, 2010 ALL MR (Cri) 182, to which one of us (P.V.Hardas, J.) was a member, had held that the dying declaration could not be said to have been proved unless and until the scribe deposes about what was told to him by the declarant. Relying on the aforesaid judgments, we have no hesitation whatsoever in coming to the conclusion that the prosecution has utterly failed to prove the dying declarations at Exh.24 and Exh.41. In that light of the matter, therefore, the dying declarations at Exh.24 and Exh.41 will have to be left out of consideration. 5. Turning to the evidence of the eye witness, viz. P.W.10 Sarika, it transpires that her statement came to be recorded on 5th April i.e. practically after ten days of the incident. Undisputedly, she was produced before the Court by her maternal uncle. After the incident she had been residing with her maternal uncle. This witness claims that on the day of the incident in the afternoon at about 12.00 p.m. she was playing near the temple 7 and was informed by her friend that there was quarrel going on between her parents at her house. She states that accordingly she had come to the house but was driven out by her grandfather and who latched the door from inside. Undeterred by the action of the grandfather she had peeped into chink of the doors and had noticed that her grandfather and grandmother had caught hold of her mother while kerosene was poured by her father who had set Ratnamala ablaze. Ratnamala had rushed out of the house after sustaining the burns. The fire was extinguished by the neighbours who had assembled there and had carried Ratnamala to the Civil Hospital. In cross-examination this witness had admitted that her father had sustained burn injuries and the fire was extinguished by the others. The trial Court has chosen not to place any reliance on the testimony of this witness on the ground that the conduct of this witness was wholly unnatural. This witness did not state as to what was witnessed by her. In cross-examination she states that she had informed her maternal uncle. If that be the case, we find it inexplicable that no report came to be lodged by the relatives of Ratnamala on her maternal side. In fact, despite the oral dying declarations alleged to have been made to father of Ratnamala i.e. P.W.4 Ghanshyam Bharati and P.W.13 Balu Bharati, brother of deceased Ratnamala, no report came to be lodged. It was only on recording of the statement at Exh.41, that the offence came to be registered. 8 However, there is another reason which falsifies the oral dying declarations apart from these factors. P.W.11 Dr.Jaishree Yadav has admitted in the cross-examination that she had recorded the history of Ratnamala at the time of her admission. She has further admitted that Ratnamala had disclosed to her at the time of recording of the history that she had sustained accidental burns by the stove. The history is reflected in the medical case papers at Exh.57. This disclosure made by Ratnamala about accidentally sustained by the burns is first in the point of time and this completely negates the oral dying declarations made to P.W. 4 Ghanshyam and P.W.13 Balu Bharati. We have already held that evidence of P.W.10 Sarika, apart from the question of belated recording of the statement, is evidence of a child witness and the evidence of child witness should not normally be accepted unless it is corroborated. In the present case, we find that Sarika is wholly an unreliable witness not only on account of delay but on account of the fact that she had not disclosed what she had witnessed to her relatives as well as the fact that she was susceptible to being tutored by her maternal uncle and in fact, appears to be a tutored witness. The delay in recording the statement, therefore, adversely affects the credibility of this witness. The trial Court, therefore, according to us has rightly disbelieved the testimony of P.W.10 Sarika. 9 6. With the result, we find that there is no reliable evidence at all except the alleged discovery of the burnt trouser and the match box. The report of the Chemical Analyzer discloses that kerosene was detected on the trouser of the accused. Seizure memo of the said trouser does not indicate that the trouser after its seizure was sealed. Moreover, the panch to the discovery memorandum i.e. P.W.6 Shankar did not support the prosecution and was declared hostile. The Investigating Officer also did not depose about the place from where the accused had produced the articles. In the result, there was no evidence to indicate that the aforesaid articles had been hidden or were covered and could not have been noticed by the prosecution. The scene of the offence panchnama had been conducted earlier. In that light of the matter, therefore, we find that no reliance whatsoever can be placed on the alleged discovery memorandum of the appellant as well as the consequent seizure of the articles. In any event, those articles by themselves are incapable of sustaining the conviction of the appellant. 7. With the result, we find that there is no credible evidence worth the name for sustaining the conviction of the appellant. The appellant, therefore, is entitled to be given the benefit of doubt. 10 8. Accordingly, this Criminal Appeal is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offence 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 ) ( P.V.HARDAS ) JUDGE JUDGE (vvr/criapeal233.10)