1 Cri.Appeal No.261/1996 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.261/1996. 1) The State of Maharashtra = APPELLANT VERSUS 1) Shivram Namdeo Adhave Age: 28 Yrs., 2) Namdeo Ravji Adhave, Age: 67 Yrs., 3) Avadabai w/o Namdeo Adhave, Age: 59 Yrs., 4) Baliram Namdeo Patil Age: 24 Yrs., All r/o village Borkund, Tq. And Dist.Dhule. = RESPONDENTS Mr.VD Godbharale, APP for State; Mr.VS Kadam, Adv. h/for Mr.RN Dhorde, Adv. for Respondent Nos. 1 to 4. ----- CORAM : A.H.JOSHI & A.R.JOSHI,JJ. DATE : 5th September, 2011. JUDGMENT (PER:-A.R.JOSHI,J.) 1) Heard rival submissions for sometime on this Criminal Appeal preferred by the State of Maharashtra, challenging the judgment and order passed in Sessions Case No.201/1989 passed by the 2 Cri.Appeal No.261/1996 learned Additional Sessions Judge, Dhule dated 6th November, 1992. 2) In Sessions Case No.201/1989, four accused persons were tried for the offence of murder in furtherance of common intention of all. The victim was one Smt. Chadrabhaga w/o accused No.1 and daughter-in-law of accused Nos.2 and 3. Accused No.4 is son of Accused Nos.2 and 3 and brother of Accused No.1. 3) The case of the prosecution can be narrated, in nutshell, as under, - (i) Victim Chandrabhaga had married with Accused No.1, however, there was no issue out of the wedlock though about 8-9 years had elapsed after the marriage. Allegedly, Accused No.1 developed dissatisfaction with the victim and was apparently in love with some other woman and allegedly married with her and staying separately at Shirur. The victim was residing at her matrimonial house at Borkund along with her in- laws, accused Nos.2 and 3. The incident of burning occurred at early hours of 14th March, 1989 when the victim was sleeping in the house and apparently during that time, Accused No.1 was staying at Shirur, at a distance of about 70-80 kms. from Borkund. He was so staying away on 3 Cri.Appeal No.261/1996 account of his job as Talathi at Shirur. (ii) At the early hours of 14th March, 1989, when the victim Chandrabhaga was asleep, accused Nos.1 to 4, in connivance with each other, poured kerosene over her person and set her on fire. Accused Nos.2 to 4 pushed her from the platform/Ota, where she was staying. After the incident of pouring of kerosene, accused No.1 flee away from the spot of occurrence. (iii) Instead of extinguishing fire, accused persons remained quite. Neighbours appeared on the spot and victim was taken to Primary Health Centre, Borkund and after initial examination, she was transferred to Civil Hospital, Dhule and was under treatment for severe burn injuries. (iv) In the Civil Hospital, Dhule, victim's dying declaration was recorded by the Special Executive Magistrate, PW No.3 – Balu Mahadu Suryawanshi. It was so recorded after obtaining the endorsement from the attending doctor, PW No.1 – Dr.Prabhakar Ramchdnra Jagtap, as to the condition of the patient being fit to give statement. In the said statement, which is in the narration and not in question and answer form, the victim gave the details as to the 4 Cri.Appeal No.261/1996 earlier events inasmuch as a meeting held for discussing the outcome when allegedly accused No. 1 asked for divorce. (v) The victim also specifically mentioned regarding the role played by the accused No.1 as to pouring kerosene over her person and setting her ablaze and role of accused Nos.2 to 4 in pushing her from the platform where she was sleeping and throwing her in a bye-lane in front of her house. (vi) On the basis of the said dying declaration, offence under Section 307 read with Section 34 of the Indian Penal Code was registered. (vii) During investigation, panchanama of scene of offence was drawn, articles found there including the quilts etc. were taken under charge. Clothes on the person of the victim were also seized under panchanama, statements of the witnesses were recorded. (viii) While under treatment for more than 90% burns, victim Chandrabhaga died in Civil Hospital, Dhule on 16th March, 1989 and consequently, offence punishable unde Section 302 of the Indian Penal Code was inserted in the 5 Cri.Appeal No.261/1996 charge sheet. (ix) Accused No.1 was arrested on 15th March, 1989. Accused Nos.2 and 3 were arrested on 16th March, 1989; whereas Accused No.4 was arrested on 21st March, 1989 and was released on bail, as he had already obtained anticipatory bail from the concerned court. Seized articles were sent for chemical analysis. On completion of investigation, charge sheet was filed. 4) While deciding the present appeal against acquittal, it must be mentioned that the scope of Appellate court is rather limited, more so, when considering the effect of the substantive evidence of prosecution witnesses when the entire matter is based on circumstantial evidence and only on the averments in the dying declaration. 5) We have gone through the substantive evidence of the prosecution witnesses and also the reasoning given by the learned Additional Sessions Judge,Dhule and analysed the evidence of dying declaration given by the victim and the endorsements made in the medical case papers at the time of admission of the victim initially at Primary Health Centre, Borkund and subsequently in Civil Hospital, Dhule. 6 Cri.Appeal No.261/1996 6) We have also observed that initial endorsements in the medical papers show the history as suicide attempt. We have also observed that initially, the medical case papers were not produced by the prosecution, however subsequently, they were brought before the court on demand from the accused and apparently this weighed with the learned Additional Sessions Judge to doubt the case of prosecution holding these circumstances as mitigating to the case of prosecution. 7) It is also observed that apart from the dying declaration of the victim, there is nothing brought before the Trial Court so far as involvement of the accused persons is concerned though there was an attempt made by examining the parents of the victim on the aspect of alleged evidence of PW No.1 to obtain divorce. 8) We have also observed the reasoning given by the learned Additional Sessions Judge while examining the defence of alibi raised by accused No.1, the main accused, husband of the victim. On this aspect, it must be mentioned that there are three defence witnesses examined in order to establish presence of accused No.1 at Shirur during the entire night of 13th March, 1989 and till the next day morning by about 4:30 7 Cri.Appeal No.261/1996 a.m. on 14th March, 1989. 9) It is observed that this three defence witnesses have categorically mentioned the presence of the appellant/Accused No.1 at Shirur at his tenanted premises inasmuch as he was working till mid-night along with defence witness No.1, his other office colleague. 10) Another two defence witnesses, i.e. landlord of accused No.1 and neighbour of Accused No.1 have also deposed as to his presence at Shirur at his house till 12.20 midnight of 13th March, 1989 and again his presence at about 4:30 A.M. on 14th March, 1989 at his house. 11) This evidence of defence witnesses was scrutinized by the learned Additional Sessions Judge in the light of averments in the dying declaration as to the presence of Accused No.1 at Borkund at his house. On this aspect, the distance between the two places, i.e. Shirur and Borkund, is about 70-80 kms. cannot be overlooked, as it would be highly improbable for a person to travel such distance to come to the place of occurrence to indulge into an act of pouring kerosene over his wife and again to go back to his normal pursuit and reach his home at Shirur at 4:30 A.M. even though he might use a 8 Cri.Appeal No.261/1996 vehicle for that purpose. 12) We have observed that the learned Additional Sessions Judge had critically examined this evidence and in that event came to the conclusion that conviction based on the dying declaration of the victim would not be prudent and ultimately came to the conclusion as to failure of prosecution to establish the charge of murder against all the four accused beyond reasonable doubt. 13) Considering the effect of the evidence brought before the Trial Court and considering the scope of the Appellate court in interfering with the order of acquittal, that too after about 19 years, in our view, there is nothing to entertain the present appeal preferred by the State. Consequently, the present appeal has no merit and the same is disposed of with following order. ORDER Criminal Appeal No.261/1996 stands dismissed. sd/- sd/- (A.R.JOSHI,J.) (A.H.JOSHI,J.) bdv/ fldr.26.8.11