1 jud510.95 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.510 OF 1995 Pushpabai Madiwalappa Shirur residing at Rajiv Gandhi Zopadpatti Madki, Wasti, Solapur .. Appellant. Vs. The State of Maharashtra .. Respondents. Mr.Aniket Vagal for the appellant. Mr.J.P.Yagnik APP for the State. CORAM : NARESH H PATIL & K.U.CHANDIWAL, JJ. DATED : 11TH JULY, 2011. JUDGMENT: (PER NARESH H PATIL, J.) 1. This appeal is directed against the judgment and order dated 25th September, 1995 passed by IInd Additional Sessions Judge, Solapur in Sessions Case No.18 of 1994 convicting and sentencing the appellant for the offence punishable under section 302 of IPC to suffer imprisonment for life. 2. The facts in brief are : that the appellant reached police station between night of 8.12.1993 and 9.12.1993 at Navi Ves Police Chauki, Solapur. It is alleged that the appellant informed the police that her brother-in-law – Rajendra Patil had assaulted her and was threatening S 2 jud510.95 to kill her. Two constables alongwith her went to Madke-Wasti. After they reached there they saw that the deceased – Rajendra Patil was lying in burnt condition in front of house of the appellant. Both the constables who had gone alongwith the appellant enquired with Rajendra Patil as to who had caused those burn injuries. According to the prosecution, Rajendra told those constables that the appellant had called him at her house in respect of settlement of the case which was filed against him. He further told that the appellant poured kerosene on his person and set him on fire. The constables thereafter called wife of deceased and brother-in-law and sent all of them to Civil Hospital, Solapur by auto rikshaw. Thereafter they searched for the appellant but they could not found her. 3. Police Constable – Jadhav alongwith Yadi approached the Special Executive Magistrate – Smt.Mhamane with a request to record dying declaration of the deceased – Rajendra. The Special Executive Magistrate recorded statement of Rajendra Patil (Exhibit-27) at about 3.30 am. The Assistant Police Inspector reached the hospital and he too recorded a statement of Rajendra Patil (Exhibit-40) at about 3.45 am. Both the statements were sent to police station through police constable Jadhav for registration of offence. An offence came to be registered at Crime No.368/93 under section 307 of IPC. The police started investigation. A spot panchnama was drawn (Exhibit-16). The articles lying on the spot were seized. At about 8.30 am Rajendra Patil expired. Inquest 3 jud510.95 panchnama was prepared (Exhibit-14). The post mortem of dead body was conducted. Statement of witnesses were recorded by the police. Seized articles were sent to chemical analyser. After completion of investigation, charge-sheet was filed by police. 4. The trial Court framed charge against the appellant which he denied and claimed to be tried. P.W.1 is the medical officer – Dr.Joshi, who stated that the deceased had sufferred 100% burns when he was admitted on 9.12.1993 at about 2 am. He examined the deceased. The witness stated that the Special Executive Magistrate and police personnel asked him to examine the patient to know as to whether he was in a condition to give a statement. Accordingly, he examined the patient and stated that he was well oriented and conscious, and accordingly, he informed the Special Executive Magistrate. He further stated that in his presence the Magistrate recorded statement of Rajendra. He made endorsement on statement to the effect that the patient was in a position to give statement. The endorsement is at Exhibit-25. According to the medical officer the patient died at 7.30 am on 9.12.93. The case papers of the patient were produced by the doctor. The medical officer stated that the relatives of patient were with him when he was admitted. 5. P.W.2 - Bhagirathi Mhamane, recorded the dying declaration of the deceased at Exhibit-27. According to the witness she wrote down narration of patient and read over the statement to patient. As 4 jud510.95 the hands of patient were burn, she could not obtain his thumb impression on the dying declaration. She put her signature and also put a seal on the statement. The medical officer also put endorsement on the original statement (Exhibit-27) and handed over the same to the police later on. 6. P.W.3 – Bhimshankar Sidramappa Bavade stated that the appellant is his sister. The deceased – Rajendra was husband of his sister - Mahadevi. According to him the deceased - Rajendra, Mahadevi and the appellant were residing in the same house. Mahadevi was married to the deceased before 5-6 years. The appellant was married too and had a son and daughter but she was not residing with her husband. According to this witness before 7-8 months of the incident there was quarrel between the deceased and his wife Mahadevi. Mahadevi was assaulted by the deceased. There was a police case filed against the deceased regarding the said incident. He denied that there was illicit relation between the accused and the deceased. He stated in the next breath that he did not know anything about the incident. When the incident in question took place he stated that he was sleeping in the house. After he heard shouts he came out and saw police personnel in lane. He tried to talk to Rajendra but found that he was unconsicious and was not able to talk. This witness was declared hostile. 7. P.W.4 is Mahadevi Patil, who is wife of the deceased and sister 5 jud510.95 of P.W.3. She was also declared hostile by the prosecution. 8. P.W.5 - Dr.Vijay Nagnath Bet was the medical officer of General Hospital, Solapur who conducted post mortem of the deceased. According to the Dr.Vijay Bet the deceased sufferred 100% burn injuries. The cause of death was shock due to 100% burns. 9. P.W.6 Rashid Hasansab Shaikh is Police Constable, who had gone alongwith accused to the house of the deceased. In his evidence he stated that the deceased told him that the appellant had set him ablaze by pouring kerosene on his person. 10. P.W.7 – Mallikarjun Basappa Khanapure is a rickshaw driver who had carried the deceased to the hospital. He was declared hostile. P.W.8 – Appasaheb Balgonda Rajmane was P.S.O. At Faujdar police station. P.W.9 – Madhukar Alu Jadhav is Police Head Constable, who had gone to the Special Executive Magistrate and took her to the hospital to record statement of the deceased. P.W.10 – Dinkar Kashinath Kulkarni is A.P.I. who conducted the investigation. 11. Learned counsel for the defence submitted that both the dying declarations are not truthful and reliable. Neither they are voluntary in nature. The oral statement allegedly made by Rajendra Patil to Police Constable Jadhav cannot be relied upon. The material prosecution witnesses i.e. the wife of the deceased and brother-in-law 6 jud510.95 of the deceased did not support the prosecution as they stated that the deceased – Rajendra was unconscious and was not able to speak. The Special Executive Magistrate could not obtain thumb impression of the deceased on dying declaration Exhibit-27 whereas A.P.I. claims to have obtained thumb impression of the deceased. The deceased sufferred 100% burn injuries. In the light of medical evidence, the claim of A.P.I. in respect of recording the statement of Rajendra cannot be relied upon. As regards the statement recorded by the Special Executive Magistrate it was urged that thumb impression of deceased was not obtained by the Magistrate therefore it is not known as to whether the deceased had really made the statement. In the light of deteriorating health condition of the deceased, the deceased was not in a position to make any statement. The counsel submitted that there is no motive for the appellant to commit crime. The appellant was related to the deceased. There is allegation that there was illicit relation between the appellant and the deceased. The appellant, the deceased and his wife were all residing in the same house. Considering the fact that there were other members in the family and adjoining neighbours the prosecution failed to establish that the appellant poured kerosene on person of the deceased and set her on fire. 12. Learned APP appearing for the State submitted that it is not necessary that thumb impression or signature on the dying declaration of the deceased shall be obtained. Learned APP 7 jud510.95 submitted that statement (Exhibit-27) recorded by the Special Executive Magistrate is voluntary, truthful and reliable one. It is not necessary for the Magistrate to narrate substance of the statement made by the declarant before the court. The dying declaration at Exhibit-27 was exhibited and the contents of dying declaration could be read in evidence. Learned APP further submitted that there are strong circumstance brought on record which indicate that the appellant is guilty and she had poured kerosene on person of the deceased and set him on fire. There is no reason for the head constable to make false statement regarding oral dying declaration made by the deceased when they reached house of the appellant. 13. We have perused the original record, submissions advanced by learned counsel for the defence and learned APP for the State. The gensis of the prosecution case had not been brought on record. A suggestion was given that the accused and the deceased had illicit relations. The deceased was a married person. The appellant is sister-in-law of the deceased. They were all residing together, however, the appellant was not residing with her husband though she was blessed with two children. The motive put forth by the prosecution is that a case was lodged against the deceased and to settle that case the deceased was called at the residence of the appellant. We do not find much support to this theory in the evidence. 14. After the police reached the house they found that Rajendra 8 jud510.95 Patil was seen burnt. The appellant had gone to the police to complain against the deceased. Considering the time at which she had gone and was in the police station it is improbable that the appellant could have committed the offence. When the police reached house of the appellant they found that the deceased - Rajendra was in burnt condition. According to the medical evidence, the deceased had sufferred 100% burn injuries. The witnesses who turned hostile stated that the deceased was not in a position to speak as he was unconscious. We have perused the case papers from which it could be ascertained that blood pressure of the patient could not be recorded due to burns. Considering the medical papers it is gathered that the patient was badly burn to the extent of 100% superficial deep. The Special Executive Magistrate has recorded that due to burn injuries it was not possible to take thumb impression of the deceased. 15. As regards the statement of the deceased recorded by A.P.I. at 3.45 am is concerned, we find that A.P.I. claims to have obtained thumb impression of the deceased. We do not find any material that the medical officer examined the deceased - Rajendra before the A.P.I. recorded the statement. There is no endorsement in respect of consciousness of the deceased on Exhibit-40, the statement of the deceased, recorded by AP.I. The prosecution case, therefore, rests on acceptance of dying declaration Exhibit-27. Material witnesses have turned hostile, the prosecution failed to lead oral evidence in 9 jud510.95 respect of other independent witnesses i.e. neighbours. We find that in the light of the facts and surrounding circumstances the relationship between the appellant and deceased, the motive proposed by the prosecution and physical condition of the deceased it would not be safe to place implicit reliance on dying declaration Exhibit-27. In the light of evidence on record, medical evidence and version of the prosecution witnesses, the dying declaration recorded by the Magistrate does not inspire confidence to convict the appellant for serious offence of murder in absence of corroboration. 16. Learned APP for the State has placed reliance on the following cases: Surajdeo Oza and Others Vs. State of Bihar AIR 1979 Supreme Court 1505; Ram Bihari Yadav Vs. State of Bihar AIR 1998 Supreme Court 1850; Shripatrao Vs. State of Maharashtra (2000) 10 Supreme Court Cases 320; Narain Singh and Anr. Vs. State of Haryana AIR 2004 Supreme Court 1616 and Tehal Singh and Others Vs. State of Punjab AIR 1979 Supreme Court 1347. Learned counsel for the appellant has placed reliance on the following cases: Mohan Sadhu Kawale Vs. State of Maharashtra 2004 ALL MR (Cri) 2626; Manohar Dadarao Landge Vs. State of Maharashtra 2000(2) Mh.L.J. 3; Dada Machindra Chaudhar and Others Vs. State of Maharashtra 1999 CRI. L.J. 4009 and State of Punjab Vs. Gian Kaur and Anr. 1998 CRI.L.J.2061. We have referred the aforesaid judgments. 10 jud510.95 17. Appeal is allowed. In the result the judgment and order passed by IInd Additional Sessions Judge, Solapur in Sessions Case No.18 of 1994 dated 25th September, 1995 is quashed and set aside. The appellant – Pushpabai Madiwalappa Shirur is acquitted of the charge under section 302 of IPC. Her bail bonds stand cancelled. (K U CHANDIWAL,J.) (NARESH H PATIL,J.)