1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 801 of 1998 1. Smt.Kokilabai Sambhaji Jagtap 2. Pramod Sambhaji Jagtap ..Appellants V/s 1. The State of Maharashtra ..Respondent Shri S.V.Kotwal for the Appellant-Accused Smt.V.R.Bhosale,A.P.P. for State CORAM CORAM CORAM:S.B.MHASE AND S.R.SATHE,JJ. DATED DATED DATED:6th October 2005 ORAL JUDGMENT ORAL JUDGMENT ORAL JUDGMENT :- (Per S.R.SATHE,J.) 1. The Appellants-original accused nos.1 and 2 in Sessions Case No.1380 of 1996 have preferred this appeal against the judgment and order passed by the Court of Additional Sessions Judge, Mumbai whereby both the accused were convicted for offense punishable under Section 302 of IPC and sentenced to suffer imprisonment for life. . The brief facts giving rise to this appeal are as under : 2. Accused no.1 Kokilaben is the mother of accused no.2 Pramod. Marriage of Pramod took place with Bharati i.e. deceased in May 1996 at Hatnur District Dhule. After marriage, for few days she stayed with her in-laws and thereafter about 1 month prior to the incident, which is dated 7-2-1996, Bharati started residing with accused at 2 Gopal Bhuvan, Ghatkopar, Gangawadi, Mumbai. At the time of marriage an amount of Rs.35,000/- was paid to accused by way of dowry. It is alleged that even thereafter accused was asking Bharati to bring half tola gold and an amount of Rs.19/12 thousands and harassing her on that count. 3. On 12-7-1996 in the morning deceased Bharati gave a phone call to the husband of her elder sister viz. Damodar Bhimrao Pawar (complainant in the present case) that accused were harassing her and as such he should come and visit the house. On the same day when the complainant Damodar B. Pawar went to the house of the accused at about 9-45 p.m. he found the house of the accused locked. When he inquired with neighbours he came to know that Bharati was burnt and admitted in Rajawadi Hospital, Ghatkopar. He, therefore, went to the said hospital. On reaching to Hospital, he found that Police had already arrived at the hospital and they were making inquiry with Bharati who was admitted in the burns ward. The Special Executive Magistrate Leena Vichare recorded the dying declaration of Bharati wherein she told that her husband and mother in law set her on fire. Immediately thereafter PSI Budhawant also recorded her statement. Then complainant Damodar B. Pawar filed complaint Exh.13 against the accused. On the basis of the same the Police registered CR No.194 for the offence punishable under Section 498A of IPC against the accused. Police then visited the place of 3 offence and drew panchanama and arrested the accused nos.1 and 2 at mid-night. Police recorded the statements of various witnesses. During the period when accused no.2 was in Police custody he made a statement before the Police that he would point out the clothes which were on his person and on the person of the accused no.1 and accordingly memorandum was drawn and the accused no.2 led police and panchas to his house and produced certain articles as well as clothes of the accused which were kept in the suit case. Police seized the said articles under panchanama and then sent the attached articles to C.A.. In the meantime on 15-7-1996 at 6-00 p.m. Bharati succumbed to burn injuries. As a result of the same, Police also registered the offence punishable under Section 302 of IPC. After completion of the investigation Police submitted the charge sheet against the accused. 4. Having found that the accused are charged sheeted for the offence which is exclusively triable by the court of Sessions, the leaned Metropolitan Magistrate committed the case to the Sessions court, Mumbai. The Additional Sessions Judge, Mumbai framed charge Exh.6 against accused for the offence punishable under Section 304B of IPC and in the alternative for the offence punishable under section 302 of IPC. The charge was read over and explained to the accused. Both the accused pleaded not guilty and claimed to be tried. From the suggestions put to the PWS and from the 4 statements of accused recorded under Section 313 of Cr.P.C. it appear that defence of the accused is of total denial. 5. In order to prove the charge levelled against the accused the prosecution has examined in all 9 witnesses consisting of complainant Damodar B. Pawar, PW1, Exh.12, Shivaji B. Walunj, PW, Exh.14, Bhikaji K. Tayade PW 3, Exh.18, Smt.Leena Vichare PW 4 Exh.17, Panch witness Mansoor G. Sayyed PW 5, Exh.20,Dr.Rajiv N. Palvia, PW 6,Exh.25, I.O. PSI Suresh S. Budhawant Exh 28, another doctor Manchar P. Shivsharan PW 8 Exh.31 who did post martem, another IO Ramrao S. Patend PW 9 Exh.33. Prosecution has produced certain documents such as panchanama of the place of offence Exh.16, panchanama of attachment of clothes Exh.38, panchanama of clothes of deceased Exh.33 C.A. report Exh.34. After considering the evidence adduced by the prosecution the learned trial Judge came to the conclusion that the prosecution has proved beyond reasonable doubt that the accused committed murder of Bharati. He therefore passed the order of conviction and sentence as mentioned above. 6. Being aggrieved by the above order, the appellants have filed the present appeal. In this appeal before us Shri S.V.Kotwal, learned Advocate for the accused has urged 3 points. Firstly, he submitted that the learned trial Judge has not properly appreciated the evidence on 5 record and has failed to take into consideration the discrepancies and contradictions in the various dying declarations. Secondly, he canvased before us that there are several circumstances on record which would indicate that accused persons have been deliberately impleaded in the offence in question. Lastly, he submitted that during the trial, it was contended on behalf of the accused that Special Executive Magistrate Vichare has in fact not recorded the dying declaration in question and the said dying declaration Exh 18 is not in her hand writing. According to him in view of the hand writing expert’s opinion which is sought during the pendency of this appeal it is clearly established that dying declaration recorded by S.E.M. Vichare is not trustworthy. He therefore, submitted that the prosecution has failed to prove beyond reasonable doubt that accused have committed the offence in question. He therefore, submitted that the appeal be allowed and the accused be acquitted. 7. As against this, Smt.Bhosale, learned APP supported the judgment and order passed by the trial Judge. She submitted that even if the dying declaration Exh.18 recorded by S.E.M. is not relied upon still there are other dying declarations viz. one which is given before the police Officer and the oral dying declaration and on that basis conviction of the accused can be sustained. 8. It is not in dispute that on 12-7-1996 Bharati had 6 sustained 48% burn injuries and as a result of the same at night she was admitted in Rajawadi Hospital, Ghatkopar. From the perusal of postmortem notes Exh.32 and in particular the cause of death it is very clear that Bharati died as a result of burn injuries. 9. the main and material question is whether her death is accidental, suicidal or homicidal. It is true that doctor from Rajawadi Hospital has stated that history of homicidal burns was given. However, that by itself is not sufficient. Ultimately, the prosecution has to establish beyond doubt that burns in question were caused at the hands of the accused. 10. In the instant case, admittedly, there is no eye witness to the incident and thus there is no direct evidence. The case rests solely on the dying declarations made by Bharati. In all there are 4 dying declarations - 2 oral and 2 written. The first dying declaration on which prosecution is heavily relying is the dying declaration recorded by Special Executive Magistrate, Leena Vichare, is at Exh.18. She has stated that on that day the Police had been to her house and she accompanied Police to Rajawadi Hospital. After reaching there she made enquiries with doctor and she was told that patient was in a position to give statement. She therefore recorded the dying declaration Exh.18 wherein Bharati specifically informed that accused nos.1 and 2 poured kerosene on her person and 7 she was set on fire. She has categorically stated that said dying declaration Exh.18 is in her hand writing. 11. It is an admitted fact that during the course eon examination of the said witness it was suggested to her that dying declaration Exh.18 is not written by her. However, she refuted the said suggestion and asserted that said dying declaration is written by her. The defense therefore submitted an application and requested that specimen hand writing of the Special Executive Magistrate be taken. However, the said application was opposed by the prosecution and ultimatey the same was rejected by the trial Judge. During the hearing of this appeal when this fact was brought to the notice of the earlier Bench the earlier Bench directed that Exh.13 and 18 be sent to the hand writing expert. Accordingly both these documents were sent to hand writing expert and hand writing expert opined vide his letter dated 3-8-2005 that author of both these documents is one and the same. On receipt of such opinion, with a view to give fair opportunity to the prosecution to give its say about the said opinion the prosecution was called upon to give its say. The prosecution did not file any particular say. However submitted an application and prayed that they be allowed to examine the scribe of Exh.13 and 18. According to them one Police Constable Gautam Kamble had written the said two documents. The prosecution was accordingly allowed to lead additional evidence of the said Constable and the said Constable 8 has deposed that Exh.13 i.e. complaint and Exh.18 i.e. dying declaration are in his hand writing. Thus it is crystal clear that dying declaration is not in the hand writing of the Special Executive Magistrate Vicahre and she had definitely made a false statement that the said dying declaration is in her hand writing. That must be obviously with a view to secure conviction in the case. It is pertinent to note that if really the said hand writing was of Special Executive Magistrate, Vicahre, then when it was suggested to her that Dying declaration Exh.18 is not in her hand writing she would have clearly stated that she is prepared to give her specimen hand writing but that has not happened. So, we have no hesitation to hold that statement made by the Special Executive Magistrate Vichare in the trial Court that Exh.18 is written by her or it is in her hand writing is a false statement. Once it is said that statement given by Special Executive Magistrate is not true it crates grave doubt about her version as well as the dying declaration in question. Naturally, we are not at all inclined to accept the said dying declaration. 12. In Dying declaration at Exh.18 question no.3 asked by the Special Executive Magistrate is "when your mother-in-law arrived?". If we peruse the earlier portion of the said dying declaration then it is very clear that there was nothing to indicate that mother-in-law of the deceased was not residing there and had arrived prior to the incident. So, under such 9 circumstances there was absolutely no reason for the Special Executive Magistrate to ask such question. The very fact that Special Executive Magistrate asked such question indicates that Special Executive Magistrate had received some information from others and on the basis of the same question no.3 was asked by her. That also shows that dying declaration is not truthful. 13. Another written dying declaration on which prosecution is relying is the one which is recorded by PSI Budhawant, immediately after the alleged dying declaration Exh.18 was recorded. Firstly, it must be noted that if really deceased had made statement impleading accused nos.1 and 2 in the offence and dying declaration would have been recorded by Special Executive Magistrate, there was in fact no necessity for P.I. to again record dying declaration immediately after 10 minutes. What is more to be noted is that if we read the said dying declaration Exh.26A the bare reading would indicate that such detail dying declaration must not have been made by Bharati who had in fact sustained severe burn injuries at that time. Minute details about the articles given etc. at the time of marriage have been mentioned in the said dying declaration. The earlier dying declaration that is at Exh.18 is a short one while this statement made before Police is quite lengthy that clearly indicates that it was not recorded in the words of the maker. So, this dying declaration does not appear to be genuine and 10 truthful and we are not at all inclined to accept the same. 14. The third dying declaration is made before the witness Shivaji Walunj. He has stated that he is residing adjoining to the house of accused. On that day he heard some noise when he looked towards the house of the accused then he found that Bharati had sustained burns and some people had gathered there. He stated that at the relevant time Bharati was crying "---------------------------------------- " Save me my mother-in law has burnt me. Firstly, it must be noted that in the entire evidence of Shivaji Walunj he has not at all impleaded accused no.2. Besides this it must be noted that even as per the version of this witness, the first person who had reached at the spot was one Premchand. In fact, he had taken the injured to Shiv Sena office. However, curiously enough we find that the said Premchand is not examined by the prosecution. Naturally, this also creates some doubt about the prosecution version. According to him he had accompanied deceased to the hospital. However if we peruse the deposition of Dr.Palvia we found that he has specifically stated that mother-in-law and neighbours had brought Bharati. There is nothing to indicate that witness Shivaji Walunj had admitted the injured in the hospital. He has stated that at the hospital the clothes of injured were handed over to him. This is also rather surprising, when it is the case of the 11 prosecution that at the hospital the relatives including the complainant were present, there was no reason for handing over the clothes to this witness. We find that statement of this witness is also not recorded at that time but the same has been recorded on the next day. So, when we find that there are discrepancies in the alleged three dying declarations mentioned before three different persons, no reliance can be placed on any of the same. 15. The complainant Damodar B. Pawar Exh.12 has also stated that on that day at about 9-45 p.m. he had been to the house of the accused and at that time one Latif was with him. Admittedly, the complainant is the near relative of the deceased. Naturally, his evidence shall have to be scrutinised with great care and caution. It must be noted that though the said witness has stated several things about the ill-traetment the prosecution has not examined the parents of the deceased to show that deceased was in fact ill-traeted at the hands of accused and for that purpose she had made any grievance with her parents. It is pertinent to note that though Latif was accompanied with complainant when they had gone to the house of the accused, prosecution has not examined this independent witness Latif. Non examination of the said material witness also creates some doubt about the prosecution evidence. The complainant Damodar B. Pawar has said that he reached to the Rajawadai Hospital at about 10-00 p.m. He has 12 also stated that at that time Police officers were already present in Rajawadi hospital and they were making enquiries with Bharati. So, there was inf act no occasion for him to make any enquiry with Bharati. However, he has stated that when he asked Bharati as to how the incident occurred she told him that in the morning the accused had harassed her and in the evening they were insisting that she should bring half tola gold and cash amount of Rs.10/12 thousands and at that time the accused no.1 poured kerosene on her person and accused no.2 lighted the match stick and she was set on fire. As mentioned above, there was in fact no reason for Damodar B. Pawar to make such enquiry at that time particularly when Police officers were also present there and they had enquired with her about the incident. It must also be noted that witness has stated that he had gone to the hospital along with accused no.2. So, when accused nos.1 and 2 were already present there it is very difficult to believe that in their presence the deceased would make any statement against the accused. Besides this from the fact that accused no.1 took injured to the hospital and accused no.2 also accompanied complainant to the hospital it appears that accused had no guilty mind. If really they had committed alleged act then normally they would have run away from the place of incident or in any event they would not have accompanied injured and accused no. 2 would not have waited there till end. 13 16. At one stage complainant Damodar Pawar Exh.12 has stated that complaint was recorded in the Police station while at the other stage he has stated that his complaint was recorded in Rajawadi Hospital. Same is the case with regard to the evidence of Inquiry Officer. The Inquiry Officer was also not in a position to say correctly as to whether the complaint Exh.13 was recorded in Police Station or at Rajawadi Hospital. What is more to be noted is that if really such complaint, with allegations of pouring kerosene and setting on fire would have been given Police would have registered the crime for the offence punishable under Section 498A and 307 of IPC but that has not happened. It appears that initially they registered the offence merely under Section 498A of IPC. So, this also creates some doubt about the prosecution version. 17. It is prosecution case that during the time when accused no.2 was in Police custody he made statement before the Police that he would produce the clothes which were on his person and accordingly memorandum Exh.21 was drawn and then accused led Police and panchas to his house and there the clothes which were kept in one suit case were seized by Police. Firstly, it must be noted that admittedly Police had visited the said house immediately on the next day i.e. 13-7-1996 and panchanama of the place of offence was drawn. If we peruse the said panchanama there is absolutely no mention of the said suit case from which the clothes 14 were produced subsequently. So, this creates some doubt. What is more to be noted is that even as per the prosecution version and the evidence on record, immediately after the time Bharati sustained burns she was admitted in the hospital and her mother-in-law i.e. accused no.1 had accompanied her. It has also come on record that mother in law of Bharati and neighbours admitted her in hospital. So, there was in fact no opportunity for accused no.1 to change her clothes. The same is the position in respect of accused no.2. Complainant Damodar Pawar has stated that at about 9-45 p.m. when he had been to the house of accused the house was locked and complainant met near Shiv sena office. So, it has also come on record that thereafter both of them went to Rajawadi Hospital and on the next day at midnight both the accused were arrested. So there was no occasion for them to change the clothes and conceal the same in the suit case. The evidence adduced by the prosecution in this behalf appears to be concocted . Thus, we find that the prosecution has deliberately made an attempt to rope the accused for the offence in question. As already pointed out above, the dying declaration Exh.18 is not trustworthy. It has also come on record that clothes which were attached were not sealed. When such is the position, the C.A. report Exh.34 looses its importance and no weightage can be given to it. Merely from such evidence no one can be jump to the conclusion that accused are guilty of the offence with which they are charged. 15 18. Thus, from the above discussion it is clear that there are several discrepancies and infirmities in the dying declarations mentioned above and it is not safe to rely on such dying declarations. Naturally, the accused shall have to be acquitted. 19. Before parting with this case it has to be mentioned that in the instant case dying declaration (Exh.18) alleged to have been recorded by Special Executive Magistrate, Leena Vichare is not genuine and trustworthy. It is abundantly clear that she has given a false statement in the trial Court that dying declaration Exh.18 is in her hand writing. This she has done in order to secure conviction against the accused. It is needless to say that post of a Special Executive Magistrate is very important one and when work of recording dying declaration is entrusted to such Magistrate it is the duty of the said Magistrate to take all precaution and record the dying declaration correctly and give a truthful account of what the injured has stated. However,in the instant case though the Special Executive Magistrate had not even recorded the dying declaration in her hand writing, still she had audacity to depose before the Court that the said dying declaration was in her hand writing. She must have done this at the instance of police with an intention to procure conviction order against the accused. When she has not performed the onerous duty cast upon her 16 properly and on the contrary given a false evidence, it is absolutely essential to take some serious action against such Special Executive Magistrate. We, therefore, feel it necessary to direct the Additional Sessions Judge, Mumbai to take an action against the said Special Executive Magistrate for perjury in accordance with provisions of Criminal Procedure Code. It is needless to say that in view of the observations made above the Government of Maharashtra will remove the name of Leena Vichare from the panel of Special Executive Magistrate immediately. 20. In this view of the matter the appeal is allowed. The order of conviction and sentence passed against accused nos.1 and 2 by the Court of Additional Sessions Judge, Mumbai in Sessions Case No.1380 of 1996 is set aside. The accused are acquitted of the offence punishable under Section 302 of IPC. The accused no.2 be released forthwith if not required in any other case. Bail bond of accused no.1 stands cancelled. (S.R.SATHE,J.) (S.B.MHASE,J.) 17 **While issuing authenticated copy of this order please insert Marathi version in para 14 (copy of the said order is enclosed).