1 Cri.Appeal No.65/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 65 OF 2010 Vithal s/o Tukaram Gaikwad, Age : 45 years, Occ.Nil, R/o Vatsalanagar Anadoor, Tq. Tuljapur, Dist. Osmanabad (At present in Nashik Central Prison Convict Prisoner No.C-7209) ..APPELLANT (Original Accused No.1) VERSUS The State of Maharashtra through Police Station Naldurg, Taluka Tuljapur, District Osmanabad ..RESPONDENT (Original Complainant) Mr S.M. Ganachari, Advocate (appointed) for the appellant; Mr V.D. Godbharle, Asstt. Public Prosecutor for respondent - State CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 7th June, 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) 2 Cri.Appeal No.65/2010 The appellant, who stands convicted for an offence punishable under section 302 of the Indian Penal Code and 498-A of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs. 2,000/-, in default to undergo further R.I. for six months and R.I. for one year and to pay fine of Rs.500/-, in default to undergo further R.I. for two months, by the Sessions Judge, Osmanabad, by judgment dated 7.8.2008, in Sessions Case No.92 of 2006, 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.3 A.S.I. Chandrakant Wadekar, who was attached to the Sadar Bazar police station, Solapur was on duty at the Police Chowky of the Civil Hospital, Solapur on 2.7.2006. On that day when C.M.O. on duty orally informed him about admission of Chandrakala in the Hospital with burns. P.W.3 A.S.I. Wadekar accordingly informed P.W.7 Dayanand Mane, a Special Executive Magistrate for recording the dying declaration of Chandrakala. P.W.7 Dayanand Mane proceeded to the Civil Hospital, Solapur and contacted P.W.3 A.S.I. Wadekar, who handed over to him a written requisition at Exh.56 for recording the dying declaration. P.W.7 Dayanand Mane thereafter contacted the Medical Officer and requested him to ascertain if Chandrakala was in a fit condition to give her statement. Accordingly the Medical Officer opined that Chandrakala was 3 Cri.Appeal No.65/2010 conscious and in a condition to give her statement. The relatives, who were present, were asked to leave the ward and thereafter P.W.7 Dayanand Mane recorded the dying declaration of Chandrakala. Chandrakala has stated in her dying declaration that she was married to the appellant about 12 years prior to the incident and has given birth to a son and a daughter. Chandrakala further informed P.W.7 Dayanand Mane that her brother-in-law Dinu had advanced a hand loan of Rs. 5,000/-, out of which Rs.3,000/- had been repaid to Dinu while Rs.2,000/- remained to be paid. Dinu had accordingly telephoned her and asked her as to when he should come for collecting the balance amount. The conversation was overheard by the appellant, who immediately suspected that Chandrakala had illicit relations with her brother-in-law. At about 3.00 a.m. in the night the appellant poured kerosene on her and set her ablaze. The appellant thereafter extinguished the flames by pouring water and admitted her in the hospital. The dying declaration is at Exh.57. On the next day Chandrakala succumbed to her injuries and P.W.3 A.S.I. Wadekar was informed to that effect by the Medical Officer. An inquest panchnama at Exh.46 came to be drawn. The dying declaration was forwarded by A.S.I. Wadekar to Police Station, Naldurg along with the covering letter at Exh.48. P.W.9 P.I. Bhosale, who was attached to the Naldurg police station received message on 3.7.2006 from the police station Sadar Bazar, Solapur and accordingly sent Police Constable Kadam, B.No.406 to the Sadar Bazar Police Station for bringing the papers relating to Chandrakala. The P.S.O. of police station, 4 Cri.Appeal No.65/2010 Naldurg was directed by Police Inspector Bhosale to register an offence and accordingly an offence came to be registered vide Crime No.139 of 2006 under section 498-A, 302 read with sec. 34 of the Indian Penal Code. 3. Dead body of Chandrakala had been referred for post mortem examination and post mortem on the dead body of Chandrakala was performed by P.W.1 Dr. Pradeep Karyakarte. He noticed that Chandrakala had sustained 74% burns which were ante mortem in nature. He has opined that deceased had died of shock due to 74% burns. The post mortem report is at Exh.41. P.W.9 P.I. Bhosale then proceeded to the scene of the offence and drew the scene of the offence panchnama at Exh.59 in the presence of panch witnesses and P.W.8 Vithal, who is a Photographer. From the scene of the offence half burnt sari, half burnt petticoat and a white coloured Can containing kerosene came to be seized. Similarly, half burnt match stick and a small lamp also came to be seized. Statements of witnesses came to be recorded and the appellant/accused Vithal and accused no.2 Namdeo came to be arrested under arrest panchnamas at Exh.62 and 63. The seized property was sent to the Chemical Analyser at Aurangabad along with the requisition at Exh.64. Further to the completion of investigation a charge-sheet against the appellant/accused came to be filed. 5 Cri.Appeal No.65/2010 4. On committal of the case to Court of Sessions, Trial Court vide Exh.22 framed charge against the appellant and two other accused for offence punishable under section 498-A read with sec. 34 and against the appellant for offence punishable under section 302 of the Indian Penal Code. All the accused denied their guilt and claimed to be tried. Prosecution, in support of its case, examined nine witnesses while the accused in his defence examined Tukaram, son of the appellant. 5. Before we deal with the submissions advanced before us by the learned Counsel appointed for the appellant and the learned A.P.P., it would be useful to refer to the evidence of the prosecution witnesses. 6. P.W.2 Dr. Avinash Ghorpade, who had initially treated Chandrakala in the hospital states about Chandrakala narrating the history of homicidal burns at 3.00 a.m. on 2.7.2006. Chandrakala had stated that her husband had poured kerosene on her and had set her ablaze. He then states about verifying the condition of Chandrakala at the request of P.W.7 Dayanand Mane, a Special Executive Magistrate and on finding that Chandrakala was in a fit condition to give her statement endorsed accordingly. In cross-examination he has admitted that Chandrakala was administered only intravenous fluids and no other medicine was given to her. He has admitted that it is usual part of the treatment to administer sedatives to the patient. He has further admitted that normally pain killers like Morphine and Pethidine are given 6 Cri.Appeal No.65/2010 to patients with burns. He has also admitted that calmpose and fortwin is also administered to the patients. He has also admitted that in general, if pethidine and fortwin are combined and administered to the patient, its effect would last for 1-1/2 to 2 hours and in case of intra-muscular injection it would remain for 3 to 4 hours. He has admitted that Chandrakala had been referred by the Medical Officer of Primary Health Centre Anadoor along with the reference letter at Exh.44. He has also admitted that there is a reference of administration of pethidine in Exh. 44. He has admitted that Chandrakala was brought in the hospital before 6.15 a.m. and as soon as she was brought he had inquired with her about the history. He has admitted that after recording of the dying declaration Chandrakala was shifted in the Surgical Ward at about 8.00 a.m. 7. Learned Counsel for the appellant has urged before us that at 5.00 a.m., as per Exh.44 pethidine had been administered to Chandrakala and, therefore, Chandrakala could not have been in a fit mental condition to give her statement. It is, therefore, urged before us by the learned Counsel for the appellant that no reliance can be placed on the dying declaration recorded by P.W.7 Dayanand Mane at Exh.57. 8. It is true that in Exh.44 there is a reference to administration of pethidine injection at 5.00 a.m. The Medical Officer has also admitted that the effect would be for 1-1/2 hours to 2 hours. P.W.2 Dr. Avinash 7 Cri.Appeal No.65/2010 Ghorpade has also admitted that the mental faculties would be affected in case pethidine was administered. In such circumstances, therefore, according to us the appellant has been successful in raising a doubt about the condition of Chandrakala to give her statement. If the mental faculties were clouded on account of administration of pethidine, which is a sedative, we find that no reliance can be placed on the dying declaration recorded by P.W.7 Dayanand Mane. 9. P.W.5 Limbabai states that accused no.1 used to illtreat Chandrakala as he was suspecting the character of Chandrakala. She states that about fifteen days prior to the incident Chandrakala had been to her house and had informed her that she had been driven out of the house by the appellant after assaulting her. She then states that the appellant had come to her house and Chandrakala was sent along with him. She states about receiving a message from accused no.2 about admission of Chandrakala in the hospital at Solapur because of burns. She states about Chandrakala orally informing her that the appellant had set her on fire at 2.00 a.m. as he suspected the illicit relations between Chandrakala and her brother-in-law. In cross-examination she has admitted that Chandrakala used to become angry if anything was done against her will. Limbabai has admitted that Chandrakala was a pampered child. She has admitted that fifteen days prior to the incident Chandrakala had come to village Anadoor for some religious purpose and had stayed at the house of the appellant at Anadoor. She has also 8 Cri.Appeal No.65/2010 admitted as correct that Chandrakala was insisting that appellant should reside at Theur, District Pune while the appellant was insisting Chandrakala to reside in the house at Anadoor and there used to be bickerings in between them on that count. She has admitted that Chandrakala had been operated in the hospital at Wagholi about six months prior to the incident on account of some ailment of the chest. She has admitted that when she had met Chandrakala she was restless and was groaning and her condition was critical. She has admitted that the appellant and his son Tukaram were present in the hospital. 10. Learned Counsel for the appellant has rightly urged before us that the claim of Limbabai that Chandrakala was illtreated is completely falsified by the recitals of the dying declaration at Exh.57. In the dying declaration at Exh.57 Chandrakala does not allege at all that she had been assaulted or illtreated by the appellant. The claim of this witness that fifteen days prior to the incident Chandrakala had been driven out of the house is also falsified as fifteen days prior to the incident Chandrakala was residing at Anadoor as she wanted to attend some religious function. In respect of the oral dying declaration, the fact that Chandrakala had been administered pethidine would render the oral dying declaration unreliable. P.W.6 Dinu, brother-in-law of Chandrakala, who had telephone Chandrakala, states that the appellant had borrowed Rs. 5,000/- from him for the purpose of treatment of Chandrakala and had repaid an amount of Rs.3,000/-. Dinu further states that he had 9 Cri.Appeal No.65/2010 telephoned the appellant from Pune and initially Chandrakala talked to him on phone and requested for refund of the amount as mother of Dinu and son of Dinu were required money for their treatment. He has stated that Chandrakala had said that she would pay the remaining amount after 1-1/2 months and then had handed over the telephone to the appellant. The appellant also assured Dinu that the remaining amount would be repaid to Dinu in about a month and a half. He states that after fifteen days of the telephone call he learnt that Chandrakala had sustained burns. Omission has been duly proved that he had not stated in his previous statement that he had advanced hand loan of Rs.5,000/- to the appellant for treatment of Chandrakala. Omission has also been proved that he had not stated in his previous statement that he had called the appellant on the telephone of his landlord Ashok Gaikwad. 11. It has been rightly urged before us by the learned Counsel for the appellant that the alleged telephone call was made as per P.W.6 Dinu about fifteen days prior to the incident. Dinu has been examined as a prosecution witness and has not been declared hostile. The recitals in the dying declaration, therefore, stand falsified on account of the evidence of P.W.6 Dinu. Chandrakala, at Exh.57, has stated that on the same day in the morning at about 3.00 a.m. after receiving the call, the appellant had set her ablaze, while according to Dinu the telephone call had been made fifteen days prior to the incident. Omission has been duly proved in respect of advancing of hand loan by Dinu to the appellant. In such 10 Cri.Appeal No.65/2010 circumstances, therefore, the fact that Chandrakala may not be in a fit mental condition to give her statement sands fortified. 12. Accused has examined D.W.1 Tukaram, who states that as there was no electricity connection in the house they used to light a small kerosene lamp which was kept on the window-sill. He states that on the day of the incident he had filled the lamp with kerosene and as per the instructions of deceased had kept it on the window-sill as usual. He states that all of them had retired to bed at about 9.00 to 9.30 p.m. His mother had slept below the window-sill while he, his sister and his father (appellant) had slept on the iron cot. At about 3.00 a.m. he heard the cries of his mother and after awakening he noticed that his mother was surrounded with flames. His father had brought water in a pot and had poured the water on his mother and thus extinguished the fire. He states that his mother had stated that she had sustained the burns on account of the fall of the kerosene lamp from the window-sill. He has stated that after his mother was injected in the Primary Health Centre with medicine, she was un-conscious and was unable to identify any person. He has been cross-examined by the learned A.P.P. and he has admitted that they were all in deep sleep and were awakened only on hearing the cries of his mother. Though D.W.1 Tukaram has been cross-examined, nothing has been elicited in the cross-examination. A defence witness is entitled to be treated in the same manner as a prosecution witness and from the 11 Cri.Appeal No.65/2010 cross-examination we find that there is nothing inherently improbable in the evidence of D.W.1 Tukaram, which would affect his credibility. 13. Thus, on account of the administration of pethidine injection, evidence of P.W.6 Dinu which renders the recitals of the dying declaration at Exh.57 as false and the evidence of D.W.1 Tukaram, we find that the prosecution has failed in proving the offence against the appellant beyond reasonable doubt. The appellant/accused, therefore, would be entitled to be given the benefit of doubt. 14. Accordingly, Criminal appeal No.65 of 2010 is allowed and the conviction and sentence of the appellant for offence punishable under section 302 and section 498-A of the Indian Penal Code 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. Fees payable to the learned Counsel appointed on behalf of the appellant is quantified at Rs.3,000/- (Rs.Three Thousand). (A.V. POTDAR, J.) ( P.V. HARDAS, J.) amj/cria65.10