- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.154 OF 2008 Sk. Biban @ Chunnu s/o Shaikh Nizam, Age 33 years, Occ. Agriculture, Resident of Salwadi, Tq. Kalamnuri, District Hingoli. ... APPELLANT VERSUS The State of Maharashtra, Through Police Station Kalamnuri Through Complainant, Hajrabi w/o Sk. Biban @ Sk. Chunnu Age major, Occ. Household, R/o Sandas, Tq. Kalamnuri, District Hingoli. ... RESPONDENT ----- Shri K.C. Sant, Advocate for the appellant Shri K.S. Patil, A.P.P. for the respondent ----- CORAM : P.V. HARDAS AND N.D. DESHPANDE, JJ. DATED : 25th January, 2010. ORAL JUDGMENT (PER HARDAS, J.) 1. The appellant/ accused, 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. 5000/-, with a default stipulation of undergoing further S.I. for six months in the event of non payment of fine, by the Additional - 2 - Sessions Judge, Hingoli, vide judgment dated 11.4.2008, in Sessions Trial No.36/2007, by this appeal questions the correctness of his conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus : P.W.6 Prakash Avade, a Police Head Constable attached to the Kalamnuri Police Station, was directed by the P.I. of that Police Station to record the statement of Hajrabi, who had been admitted in the Government Hospital at Nanded in Ward No. 14 because of burns. P.W.6 Police Head Constable Prakash Avade accordingly proceeded to the Government Hospital at Nanded and requested the medical officer to ascertain the condition of injured Hajrabi. The medical officer accordingly examined Hajrabi and opined that she was in a fit mental condition to give her statement. P.W.6 Police Head Constable Prakash Avade accordingly recorded the statement of injured Hajrabi at Exhibit 24. After recording the said statement, the statement of Hajrabi came to be handed over to P.W.13 P.S.I. Waman Hivale. P.W.13 P.S.I. Waman Hivale, who was also attached to the Kalamnuri Police Station, registered an offence and handed over further investigation to P.W.12 P.S.I. Lamture. Meanwhile, it appears that the Special Executive Magistrate had also been - 3 - requested to record the dying declaration of injured Hajrabi. Accordingly, P.W.14 Kundlik Zunzare, a Special Executive Magistrate proceeded to the Government Hospital and after ascertaining the condition of injured Hajrabi, recorded the dying declaration of injured Hajrabi at Exhibit 52. P.W.12 P.S.I. Lamture on being entrusted with the investigation, requested a photographer who took photographs of the scene of the offence. The scene of the offence panchanama at Exhibit 15 came to be drawn in the presence of P.W.1 Sk. Mukhtar. From the scene of the offence an empty kerosene can, pieces of burnt sari, ordinary mud and mud suspected to be mixed with kerosene, came to be seized. On 23.2.2007, injured Hajrabi succumbed to her injuries. On the next day i.e. 24.2.2007, statements of the parents and brother of deceased Hajrabi came to be recorded. On account of death of Hajrabi, Section 302 of the Indian Penal Code came to be added. The inquest panchanama at Exhibit 13 came to be drawn by P.W.5 Vasant Rathod. Dead body of deceased Hajrabi was referred for post mortem examination and post mortem was conducted by P.W.7 Dr. Nagshetiwar. P.W.7 Dr. Nagshetiwar noticed that deceased Hajrabi was pregnant by 24 weeks. The said child was also found dead. It was also noticed that deceased Hajrabi had sustained 99% burn injuries which were ante mortem. The medical officer, therefore, opined that deceased Hajrabi had died because of shock due to burn injuries. The post mortem - 4 - report is at Exhibit 29. The appellant/ accused came to be arrested and the seized property was referred to the Chemical Examiner vide Exhibit 37. Further to the completion of investigation, a charge sheet against the appellant/ accused came to be filed. 3. On committal of the case to Court of Sessions, charge vide Exhibit 8 was framed against the appellant for an offence punishable under Sections 302, 498-A and 506 of the Indian Penal Code. The accused denied his guilt and claimed to be tried. Prosecution, in support of its case, examined 15 witnesses. The accused had denied the incident and had pleaded his innocence. The trial Court accepted two dying declarations at Exhibit 24 and at Exhibit 52 as well as the oral dying declarations made by deceased Hajrabi to P.W.2 Sk. Jamal, P.W. 3 Noorjahabi and P.W.9 Sk. Shakir. The trial Court, therefore, came to the conclusion that the prosecution had been successful in establishing the offence against accused beyond reasonable doubt. The trial Court accordingly convicted and sentenced the appellant as aforestated. 4. Before we advert to the submissions advanced before us by Mr. K.C. Sant, learned counsel for the appellant and Mr. K.S. Patil, learned A.P.P. for the respondent/State, it would be useful to refer to the evidence of the prosecution witnesses. P.W.6 Police Head Constable Prakash Avade, who had recorded the dying - 5 - declaration at Exhibit 24, only states that deceased had told him that she was residing at Sailu with her husband and since last 4 to 5 months her husband had started ill-treating her. Beyond that, P.W.6 Police Head Constable Prakash Avade does not prove the contents of the dying declaration. Similarly, evidence of P.W.14 Kundlik Zunzure also discloses that he states that he had recorded the dying declaration at Exhibit 52 as per the narration of injured Hajrabi. P.W.14 Kundlik Zunzure also does not prove the contents of the dying declaration. In that light of the matter, therefore, it has been rightly urged before us by Mr. K.C. Sant, learned counsel for the appellant by relying on the judgments of this Court in Deorao s/o Sonbaji Bhalerao & Anr. Vs. State of Maharashtra (2008 ALL MR (Cri) 1921 and Jivan Tulsiram Dhavali & Anr. Vs. State of Maharashtra (2008 ALL MR (Cri) 2018) that, in the absence of any evidence of the authorities who has recorded the dying declaration in respect of the contents of the dying declarations, the dying declarations cannot be held to be proved. The Division Bench of this Court in the aforesaid judgments, has held that it was incumbent for the prosecution to lead evidence in respect of the contents of the dying declaration. Merely stating that the dying declaration was recorded as per the narration of the injured would not amount to proving the contents of the dying declaration. In that light of the matter, therefore, we have no hesitation in coming to the conclusion that the prosecution has failed to prove the two - 6 - written dying declarations at Exhibit 24 and at Exhibit 52. 5. If the written dying declarations at Exhibit 24 and at Exhibit 52 are left out of consideration, we are faced with the oral dying declarations made by Hajrabi to P.W.2 Sk. Jamal, P.W.3 Noorjahabi and P.W.9 Sk. Shakir P.W.2 Sk. Jamal states that deceased Hajrabi had regained consciousness in the Government Hospital and had narrated to him that it was the accused who had poured kerosene and had set her ablaze. Similarly P.W.3 Noorjahabi also states about Hajrabai informing her that it was the appellant who had poured kerosene on her and had set her ablaze. P.W.9 Sk. Shakir, brother of deceased Hajrabi also deposes on similar lines. Mr. Sant, learned counsel for the appellant has urged before us that the dying declarations cannot be relied upon to form the basis for conviction as the conduct of P.W.2 Sk. Jamal, P.W.3 Noorjahabi and P.W.9 Sk. Shakir is highly unnatural as none of them had reported the matter to the police despite the fact that they are parents and brother of deceased Hajrabi. Till the statements of these witnesses came to be recorded i.e. after the demise of Hajrabi, none of these witnesses had informed the police. We find that the conduct of these witnesses is highly unnatural and no reliance at all can be placed on the oral dying declarations alleged to have been made by the deceased Hajrabi to P.W.2 Sk. Jamal, P.W.3 Noorjahabi and P.W.9 Sk. Shakir. - 7 - 6. If the evidence of these three witnesses is left out of consideration, there is absolutely no evidence to come to the conclusion that it was the appellant who had poured kerosene on his wife Hajrabi and had set her ablaze. The appellant has also been acquitted by the trial Court in respect of offence punishable under Sections 498-A and 506 of the Indian Penal Code. The State has not filed any appeal against the acquittal questioning the acquittal of the appellant. In that light of the matter, therefore, we find that there is absolutely no evidence to justify the conviction of the appellant and the appeal deserves to be allowed. 7. Accordingly, Criminal Appeal is allowed and 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. [N.D. DESHPANDE, J.] [ P.V. HARDAS, J.]