1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.632 OF 2009 Rajkumar S/o.Rangrao Deshmukh, Age-38 years, Occu-Agriculturist, R/o.Killariwadi, Tq.Ausa, Dist.Latur APPELLANT VERSUS The State of Maharashtra RESPONDENT Mr.R.N.Dhorde, learned counsel for the appellant. Mr.B.V.Wagh, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 22/11/2010 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. The appellant, who stands convicted for an offence punishable u/s. 302 of The IPC and was sentenced to suffer life imprisonment and to pay the fine in the sum of Rs.1,000/-, in default to suffer further SI for one month in Sessions Case No. 20/2009, vide judgment and order dated 18/11/2009 by the learned Sessions Judge, Latur, has questioned the correctness of the conviction and sentence in the said Sessions case. 2. Such of the facts as are necessary for the decision of this 2 appeal may briefly be stated thus : Lahu Vishwanath Kamble, P.W.No.6 was attached to Gandhi Chowk Police Station, Latur. He was on duty at Police Outpost Civil Hospital Latur, in the night between 29/11/2007 and 30/11/2007. He received wireless message from Khillari Police Station around 4 to 4.30 a.m. on 30/11/2007 that one female by name Kamlabai had sustained 100% burn injuries and they referred her to Civil Hospital, Latur from Government Hospital Khillari and was informed to visit Civil Hospital Latur and to record the dying declaration of the victim injured. Accordingly he had contacted on duty Medical Officer Dr.Siddiqui Nauroddin (P.W.No.1) and Dr.Ganesh Ashok Swami. Dr.Swami, P.W.No.2 took him to the burn patient ward. After Kamlabai was certified by Dr.Swami, P.W.No.2 that she is in a position to give her statement, her statement/dying declaration was recorded by said Lahu Kamble (P.W.No.6)(Exh.29). On the basis of that dying declaration (Exh.29), an offence came to be registered vide CR No.95/2007 u/s. 307 of The IPC against the present appellant. Thereafter, P.W.No.6 addressed a letter to the Special Executive Magistrate requesting him to record the dying declaration of the victim. He had also received a memo from the Medical College Hospital, Latur about admission of the injured appellant in the hospital who had sustained burn injuries. One Gorba Kishanrao Suryawanshi (P.W.No.7), a Special Executive Officer from Latur had recorded further dying declaration of Kamlabai (Exh.40), the deceased, after she was examined by Dr.Swami and certified that she 3 is fit to give her statement. 3. On 30/11/2007, Ravindra Dhulappa Bansode, API, attached to Khillari Police Station was entrusted with the investigation in Crime No.95/2007. He had visited the place of offence at Khillariwadi, at the residential premises of Kamlabai and in the presence of witnesses, drew spot panchnama (Exh.22). From the place of offence, he had seized burnt pieces of saree, sweater, one plastic can smelling kerosene, and one match box. On the same day, he had recorded statements of other witnesses. On 30/11/2007, he had received the intimation that Kamlabai succumbed to burn injuries, which intimation was received in Gandhi Chowk Police Station from Civil Hospital, Latur. Accordingly, crime earlier registered u/s. 307 of The IPC was converted u/s. 302 of The IPC. In the hospital, inquest panchnama was drawn of the dead body of Kamlabai, which was also forwarded to him. 4. Dr.Siddiqui Nauroddin conducted autopsy on the dead body of Kamlabai. The dead body was identified by one Shivaji Maruti Kadgave, the brother of the deceased. During the post mortem, he had noticed that the deceased had sustained 99% superficial injuries. During the post mortem, he had noticed following internal injuries. The abdomen wall, small intestine, large intestine, both with its contents, liver and gall bladder, spleen, kidneys were all found congested. All the congestion 4 noted by me was due to the external burn injuries. The probable cause of death was due to 99% superficial deep burn injuries, with hemorrhage shock. Accordingly, he had prepared post mortem notes (Exh.12). He had opined that the injuries found on the person of the deceased are collectively sufficient to cause death in the ordinary course of nature. 5. During the further investigation, Investigation Officer had recorded statements of certain witnesses and collected details in respect of house no.171 where the incident had occurred. On 06/12/2007, he had received the dying declaration recorded by the Special Executive Officer. On 15/12/2007, the appellant came to be arrested. Accordingly, arrest panchnama (Exh.51) was prepared. On 16/12/2007, in the presence of panch witnesses, house of the accused was searched and clothes of the accused i.e. one shirt, underwear, and pant were seized under the seizure panchnama (Exh. 34). On 28/12/2007, he had received the post mortem notes from the Medical Officer. On 28/12/2007, he had forwarded seized muddemal articles alongwith Police Constable, B.No. 271, with forwarding letter. On 04/01/2008, the sketch of scene of offence (Exh.33) was prepared by the Revenue Circle Officer. On 23/01/2008, he had received injury certificate (Exh.53) in respect of the appellant. On 06/02/2008, he had received CA report (Exh.55). After completion of investigation, he had filed charge sheet against the appellant in the Court of J.M.F.C. Ausa. After passing requisite committal order, trial against the appellant was committed to the 5 Court of Sessions on 27/02/2008. 6. From the record received from the Trial Court, it appears that the charge was framed against the appellant at Exh.3 for an offence punishable u/s. 302 of The IPC. To substantiate the charge lavelled against the appellant, prosecution has examined in all 8 witnesses, i.e. P.W.No.1 Dr.Siddiqui, who conducted autopsy on the dead body of the deceased, P.W.No.2 Dr.Swami, who examined and certified about the physical condition of the deceased at the time of recording of her dying declarations (Exh.29 and 40), P.W.No.3 Sundarbai Chitkote, P.W.No.4 Kamlakar Biradar, P.W.No.5 Santosh Biradar, who had shifted the injured to the hospital at Khillari, P.W.No.6 Lahu Kamble, Police Constable, B.No.431, who had recorded first dying declaration of the deceased (Exh.29), P.W.No.7 G.K.Suryawanshi, a Special Executive Officer, who had recorded second dying declaration (Exh. 40) of the deceased and P.W.No.8 Investigation Officer. From the record, it appears that the defence of the appellant before the Lower Court was that on hearing the commotion from the house of deceased, he rushed to the house of the deceased, where he saw that number of people were gathered in front of the house. He also noticed fire and smoke coming out of the house. After he entered in the house of the deceased, he had noticed that clothes on the person of the deceased are got with fire. As nobody was tying to extinguish the fire, he tried to extinguish the fire and in that process, he had sustained burn injuries. In his support, defence had examined D.W.No.1 Raju alias Rajendra Shivaji, the driver of the vehicle, in 6 which the injured was shifted from the Government Hospital Khillari to Civil Hospital, Latur. The witness was examined on the point that when injured was admitted in the Civil Hospital at Latur, she was not in a position to speak. 7. On appreciation of this evidence, it appears that the learned Lower Court accepted the prosecution's evidence and pleased to convict the appellant for the offence punishable u/s. 302 of The IPC, which judgment is impugned in the present appeal. 8. Before considering the submissions of learned counsel appearing for the appellant, and learned APP it is necessary to analyze the evidence of material witnesses, who were examined before the Trial Court. 9. It transpired from the evidence of prosecution witness no.2 that Kamlabai was admitted in the Civil Hospital Latur at about 5.00 a.m., as she had sustained burn injuries. P.W.NO.2 was on duty Medical Officer, who get admitted Kamlabai in the hospital. She had sustained 99% burn injuries. At the time of her admission, he had noted that Kamlabai was well-oriented, conscious and in a position to speak. He had contacted police constable at the outpost. It transpired from the evidence of P.W.No.6 that on receipt of this intimation, he reached in the burn patient ward of Civil Hospital Latur, where he called P.W.No.2 Dr.Swami. P.W.No.2 Swami examined and certified that Kamlabai was in a position to give her 7 statement. Accordingly, after making preliminary inquiry, P.W.No.6 Lahu Kamble had recorded the dying declaration of Kamlabai (Exh. 29). He had recorded her statement as stated by her. After the statement was recorded, the contents therein were readover to injured Kamlabai, which she has admitted to be true and correct. Thereafter, again she was examined by P.W.No.2 Swami and certified that she is conscious and as both the hands of the injured were burnt, her right leg toe impression was obtained on her dying declaration. This dying declaration was forwarded to Khillari Police Station and on the basis of this dying declaration, an offence came to be registered against the appellant. The witness has denied in his cross examination that the victim was not in a position to speak when he had visited Civil Hospital, Latur and not given any statement/dying declaration (Exh.29) at all. 10. It transpired from the evidence of P.W.No.7 Gorba Krushnarao Suryawanshi that he was appointed as Special Executive Officer at Latur since the year 2004 and was competent to record the dying declaration. On 30/11/2007, he had received intimation from Gandhi Chowk Police Station, Latur to record the dying declaration of Kamlabai, who eas taking treatment in the Civil Hospital for burn injuries. Accordingly, he had recorded the statement/dying declaration (Exh.40) of deceased Kamlabai. Thereafter, again P.W.No.2 Dr.Swami examined the patient and put the endorsement below the dying declaration of Kamlabai. He had obtained right leg toe impression of Kamlabai on her dying declaration at Exh.40, but 8 before that contents of the dying declaration were readover to Kamlabai, which she has admitted to be true and correct. It transpired in his cross examination in his words that, "the patient was found having suffering due to burn injuries, she was not stable. The female present near the patient was holding her. Patient was in frightened condition and there was no clarity in the speech. Patient was replying to my questions after she was informed by the lady present with her saying her to reply the questions. I was require to repeat my question for about 4 times to the patient then only she replied the same. It is true to say that at the time of recording statement, physical condition of patient was deteriorating, and the speed of her voice was decreasing." 11. In the background of this evidence, we have heard learned counsel for the appellant followed by the submissions of learned APP for State. Learned APP supports the reasoning recorded by the trial Court to convict the appellant for the offence punishable u/s. 302 of The IPC. During the course of submissions across the bar, learned counsel appearing for the appellant stressed on two points, as according to him, the case of the prosecution is based on circumstantial evidence and not on direct evidence. It is further submitted that even though two dying declarations of the victim Kamlabai were recorded during the investigation, one by P.W.No.6 Lahu Kamble (Exh.29) and was treated as FIR and the other is at Exh.40, recorded by the Special Executive Officer, the contents of these dying declarations are not proved by these two witnesses, 9 hence these dying declarations can not be read in evidence. During the course of submissions, learned counsel for appellant drawn our attention towards the cross examination of P.W.No.7 in para no.3, wherein in detail, he has admitted about the physical condition of the victim. In the premise, it is urged that it is practically impossible that in a condition narrated by P.W.No.7, the victim might have given the dying declaration at Exh.40. To support these submissions, learned counsel for appellant has drawn our attention towards the medical papers produced in the evidence of P.W.No.2, which record speaks itself about the condition of the victim at the relevant time, when these two dying declarations were recorded. In the light of this fact, the learned counsel appearing for the appellant prayed to allow the appeal. 12. Considering these submissions across the bar, it is a matter of record and fact that in the evidence of P.W.No.6 and 7, the witnesses who have recorded the dying declarations of the victim Kamlabai, have not proved the contents of the dying declaration. It is observed by this Court in the matter of Deorao Sonbaji Bhalerao versus State of Maharashtra,reported in 2008 All. M.R. (Cri.) 1921, Jivan Tulshiram Dhavali Versus State of Maharashtra, reported in 2008 All MR (Cri) 2018, Laxmibai w/o.Maruti Satpute versus State of Maharashtra, 2010 ALL MR 182, of which the reference is found in the matter of Faizal Mohammed S/o.Abdulla Banaim versus State of Maharashtra, 2010 All MR (Cri.) 2241, to which 10 one of us (Shri.P.V.Hardas, J.) is a party. In all these judgments, categorically, the view is taken by the Division Bench that what was admissible in evidence, was the statement made by the injured to the scribe. The contents of the dying declaration written by the scribe have to be proved and the scribe has to depose as to what was told to him by the injured. In absence of such evidence, the written dying declaration, de hors the contents being proved, could not be read in evidence. It is held by the Division Bench relying on the judgments of the earlier Division Bench, wherein it is held to have been duly proved. As P.W.No.6 and 7 have not uttered a single word as to what was disclosed by the victim to them, when they have recorded the dying declaration of that victim Kamlabai. In other words, the evidence of P.W.No.6 and 7 is not sufficient to prove the dying declaration at Exh.29 and Exh.40. Hence this part of the evidence to be excluded from the evidence of prosecution before the learned Lower Court. Learned Lower Court totally ignored this legal position laid down by the Division Bench in the catena of judgments while relying on the dying declarations recorded by these witnesses and while convicting the appellant. 13. Apart from the contents of the dying declarations were not proved by P.W.No.6 and 7, it is necessary to consider the medical papers produced by the prosecution in the evidence of Dr.Ganesh Swamy, P.W.No.2, which are at page no.92 to 97 of the paper book. These papers shows that P.W.No.2 has recorded the history as to how the patient has sustained burn injuries and was recorded at 4.00 11 a.m., wherein it is stated that no relatives with patient, patient has given history of accidental burns on 29/11/2007. Again at 5.00 a.m., the history was recorded that the patient had sustained burn injuries yesterday at about 11.00 p.m., which are accidental injuries. It is to be noted that the condition of the patient was recorded in the medical papers after every 3 hours. When the patient was examined on 30/11/2007 at about 8.00 a.m. or so, the patient was un- conscious, and if the patient was un-conscious when the dying declaration was recorded by P.W.No.7, and P.W.No.7 has also admitted in his cross examination about the physical condition of the patient Kamlabai, it is to be inferred that the Kamlabai was not in a fit condition to give her dying declaration. 14. In the light of the fact that the contents of the dying declarations at Exh.29 and 40 were not proved by the prosecution, and when these dying declarations were recorded, the patient i.e. Kamlabai was not in a condition to make a proper statement, these dying declarations to be discarded. As discussed earlier, if this part of the evidence is excluded from the evidence lead before the Lower Court by the prosecution, then absolutely, there is no any other evidence to convict the appellant for the offence punishable u/s. 302 of The IPC. In the substance, the appeal succeed. Accordingly, we pass the following order : This criminal appeal is allowed and the conviction and sentence of the appellant accused is hereby quashed and set aside and he is acquitted of the offences with which he was charged and 12 convicted. Fine, if paid by the appellant accused, be refunded to him. Since the appellant/accused is in jail, he be released forthwith, if not wanted in any other case (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/NOV. 2010/cri.appeal 632-09