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Judgment
P.N.Deshmukh, J
Both these appeals take exception to the impugned Judgment, dated 2nd March, 2015 passed by the learned Additional Sessions JudgeÂ2,
Achalpur, by which the appellant in Criminal Appeal No.177 of 2015 being Original accused no.3 Motiram Maroti Makode and the appellants in
Criminal Appeal No.331 of 2015 being Original accused no.1 Shobha Trambak Chavan and Original accused no.2 Nitin Trambak Chavan are
convicted for the offence punishable under Section 302 r/w. 34 of the Indian Penal Code and are sentenced to suffer rigorous imprisonment for life
each and to pay a fine of Rs.5,000/Â each and in default of payment of fine, to suffer rigorous imprisonment for three months each.
For the purpose of convenience, the appellants are hereafter referred in the sequence as Original accused no.1, Original accused no.2 and Original
accused no.3.
In brief, it is the case of prosecution that deceased Jamunabai Bhimrao Chavan was motherÂinÂlaw of accused no.1 Shobha Trambak Chavan and
grandmother of accused no.2 Nitin Trambak Chavan. One month prior to incident, which took place on 20.5.2012, as there was marriage of daughter
of accused Shobha, she had taken one wooden log from deceased in order to construct pendal of marriage. On the day of incident, at around 7.00
p.m., deceased visited house of accused no.1 Shobha to get back the wooden log. However, accused no.2 Nitin refused to return it and on that count,
there arose quarrel between them; during the course of which, accused no.2 Nitin assaulted by axe on the head of Jamunabai, due to which she fell
down.
It is further case of prosecution that accused no.2 Nitin and accused no.3 Motiram thereafter caught hold hands of deceased, while accused no.1
Shobha poured kerosene on her person and set her on fire by match stick. On hearing hue and cry of deceased, her nephew Pundlik Chavan (not
examined) arrived on the spot along with other relatives and arranged to send Jamunabai to SubÂDistrict hospital, Daryapur, wherefrom she was
referred to Irwin hospital, Amravati where she succumbed to her injuries on 22.5.2012.
It is specific case of prosecution that when deceased was admitted in Irwin hospital at Amravati, PWÂ1 Umesh Panjabrao Khodke â€
Executive Magistrate recorded her dying declaration as per Exh.56 in presence of PWÂ2 Dr.Chandrashekhar Patil, who had examined her and had
given his endorsement on the said document, PWÂ8 Anant Pralhadrao Waidhane â€" ASI attached to Police Station, Daryapur who, on receiving
dying declaration, registered offence vide Crime No.00/12 at Exh.93 under Section 307 r/w. 34 of the Indian Penal Code and transferred documents
of said crime to Yeoda Police Station as the incident took place within it's jurisdiction. PWÂ9 Police Naik Dilip Gulabrao Wankhede attached to
Yeoda Police Station who, on receipt of said documents in Crime No.00/12 registered at Daryapur Police Station, registered Crime No.21 of 2012
vide F.I.R. Exh. 97. After death of Jamunabai on 22.5.2012, offence punishable under Section 302 of the Indian Penal Code came to be added in
it. Crime No.21 of 2012 was investigated by PWÂ11 Ramdas Malve, PSI, Yeoda Police Station. During the course of investigation, he visited the
spot and on drawing the spot panchanama, seized one quilt, partly burnt blouse and saree pieces, earth mixed with blood, kerosene, simple earth and
partly burnt match stick under Panchanama Exh.67. On the same day, he effected arrest of accused no.2 Nitin and accused no.3 Motiram under
arrest panchanamas Exh. Nos. 113 and 114 respectively and seized their clothes under panchanamas Exh.68 and 69 respectively. During interrogation
with accused no.2 Nitin, his memorandum statement came to be recorded and in pursuance to same, one axe and can containing kerosene came to be
seized from his house as produced by the said accused under panchanama (Exh.70).
On 23.5.2012, accused no.1 Shobha is arrested under panchanama (Exh.115) and her clothes are seized under panchanama (Exh.72). During the
course of investigation, blood sample of accused no.1 Shobha is seized under panchanama (Exh.71) and all the seized mudemaal articles came to be
forwarded for it's analysis to Chemical Analyser under requisition letters Exh. Nos. 116 and 117. On receipt of C.A. Report (Exh.120) and after
recording statements of witnesses, charge sheet came to be filed before the Competent Court. Charge is framed against the accused for the offence
punishable under Section 302 of the Indian Penal Code at Exh.44, to which they pleaded not guilty and claimed to be tried. Defence of accused is of
denial and false implication. Neither of the accused had examined any witness in support of their case.
To establish the charge levelled against the accused, prosecution has in all examined eleven witnesses and had commenced it's evidence on
examining PWÂ1 Umesh Panjabrao Khodake â€" Executive Magistrate who has proved dying declaration (Exh.56), PWÂ2 Dr.Chandrashekhar
Gangadharrao Patil, who had examined deceased Jamunabai before and after recording of dying declaration (Exh.56) and has also performed post
mortem and prepared post mortem notes at Exh.61. PWÂ3 Vinod Pandurang Ghorad and PWÂ4 Gajanan Maroti Satrothe  both are panchas on
spot panchanama; however, they did not support the case of prosecution. Similarly, PWÂ5 Gajanan Ganeshrao Deokar examined on the alleged
memorandum statement and discovery panchanama of accused no.2 Nitin and PWÂ6 Ashok Namdeorao Chavan examined on oral dying declaration
did not support the case of prosecution as are declared hostile.
PWÂ7 Mangala Wasudeo Solanke â€" is panch on Inquest Panchanama (Exh.84). PWÂ8 Anant Pralhadrao Waidhane, ASI, Morshi Police
Station, who, on receipt of dying declaration (Exh.56) from Irwin hospital, Amravati registered crime no.00/12 at Police Station, Daryapur and
forwarded papers in this crime to Yeoda Police Station on the same day. PWÂ9 Police Naik Dilip Gulabrao Wankhade attached to Yeoda Police
Station, on receipt of documents in Crime No.00/12, registered offence vide Crime No.21/12. PWÂ10 Dr.Sushil Diliprao Deshmukh who has replied
to the query letter (Exh.107) by Investigating Officer about possibility of injury sustained by the deceased by axe saying that injury no.1 mentioned in
Medical Certificate (Exh.106) was possible by said axe. He has proved Injury Report (Exh.106). Prosecution has concluded evidence on examining
PWÂ11 Ramdas Parshram Malve, PSI, Yeoda Police Station.
Learned trial Judge, on considering the above evidence and the dying declaration (Exh.56), convicted the appellants as aforesaid on this aspect.
Heard learned Counsels for the appellants in both the appeals and the learned A.P.P. It is submitted on behalf of appellants that the dying
declaration (Exh.56), upon which the case of prosecution is based, is wholly unreliable as its contents are inconsistent with the contents of F.I.R.
(Exh.93) registered at Daryapur Police Station by PWÂ8 ASI Anant Waidhane and also with F.I.R. (Exh.97) registered by PWÂ9 Police Naik Dilip
Wankhade attached to Yeoda Police Station and it is, therefore, submitted that since contents of both these documents are having ample other
material which is not found to be stated by deceased in her dying declaration (Exh.56), said document is full of doubts and is, therefore, prayed to be
not relied upon to base conviction.
Learned Counsel for the appellants, however, has not disputed fact of homicidal death of deceased. However, they had contended that the
appellants are in no way concerned with such death as even otherwise appellant/Original accused no.1 Shobha is daughterÂinÂlaw of deceased and
appellant/Original accused no.2 Nitin is her grandson and it is no case of prosecution that the relations between them were strained on the day of
incident or prior thereto. Similarly it is submitted that no motive can be attributed to either of these appellants nor to Original accused no.3 Motiram,
who happens to be present in the house of Shobha at the time of incident to have caused murder of deceased. It is thus prayed that, for above
reasons, appeal be allowed.
Learned Additional Public Prosecutor, on the other hand,submitted that there is nothing to disbelieve the dying declaration (Exh.56) recorded by
PWÂ1 Umesh Khodake  Executive Magistrate after following due procedure and after getting the deceased medically examined from PWÂ2
Dr.Chandrashekhar Patil. It is further contended that merely because certain additional facts appear in the F.I.Rs. (Exh Nos. 93 and 97) registered
by the Police Officials which are absent in dying declaration, that by itself is not sufficient to raise doubt in the contents of dying declaration (Exh.56)
and therefore, it is submitted that the appeals are liable to be dismissed, on relying on the dying declaration.    Â
Considering the facts involved in the present appeals and submissions advanced as aforesaid, we find that the case of prosecution is based on the
dying declaration of deceased Jamunabai (Exh.56) recorded while she was admitted in Irwin hospital at Amravati and in that view of the matter, we,
with the assistance of learned Counsels for both the sides, have scrutinized evidence of PW1 Umesh Khodake, who deposed that, on 21st May, 2012,
while he was working as Executive Magistrate at Bhatkuli, visited Irwin hospital, Amravati as he received requisition memo for recording dying
declaration and on visiting Ward no.4 of Irwin hospital, requested PWÂ2 Dr.Chandrashekhar Patil to medically examine the injured whose statement
was to be recorded and on having such examination, recorded her statement wherein it is stated that, on 20.5.2012, when she had been to the house of
her son Trymbak to bring (thuni) wooden log, accused no.2 Nitin refused to part away with it, due to which there was altercation between her and
Nitin, when accused no.2 Nitin assaulted her by axe on her head and thereafter, accused no.2 Nitin and accused no.3 Motiram caught hold of her
hands and her daughterÂinÂlaw i.e. accused no.1 Shobha poured kerosene on her person and set her on fire, due to which she sustained burns. The
dying declaration is proved on record by PWÂ1 Umesh Khodake at Exh.56.
Evidence of PWÂ2 Dr.Chandrashekhar Patil corroborates evidence of PWÂ1 Umesh when he deposed that, on 21.5.2012, on the requisition
made by PWÂ1 Umesh  Executive Magistrate, he medically examined injured Jamunabai and found her to be medically and physically fit to make
her statement and accordingly, issued medical endorsement on Exh.56. According to his evidence, after recording dying declaration in presence of
PWÂ1 Umesh, he again examined the patient and certified her to be medically and physically fit and further made endorsement on Exh.56.
Considering evidence of both these witnesses, it is noted that nothing is brought on record which could create doubt in their evidence.
It is necessary to state that Exh.56 is precise, restricted to the incident which took place on 20.5.2012 involving all the appellants and bears medical
endorsement by PWÂ2 Dr.Chandrashekhar Patil before commencement of it and on concluding the same and as such, it could have been acted upon
to base conviction. However, this document when is considered with the evidence of PWÂ8 ASI Anant Waidhane along with contents of F.I.R.
(Exh.93) and with the evidence of PW9 Police Naik Dilip Wankhade attached to Yeoda Police Station along with contents of F.I.R. (Exh.97), it
creates doubt on truthfulness of Dying declaration having material inconsistencies in it and in the above F.I.Rs. As from the evidence of PWÂ8 ASI
Anant, it has come on record that, on 20.5.2012, when he was attached to Daryapur Police Station, he received dying declaration (Exh.56) brought by
H.C. Subhash Rathod and on the basis of same, registered crime no.00/12 vide Exh.93 under Section 307 r/w. 34 of the Indian Penal Code and
transferred the same to Yeoda Police Station.Â
Bare perusal of F.I.R. (Exh.93) would reveal that so many facts which are not found to be stated by deceased in her dying declaration Exh.56 are
mentioned in the F.I.R. as in dying declaration Question No.3 is when the incident occurred and where ?, to which the injured replied as stated
below :
“ On 20.5.2012 I went to the house of son son Trambak to bring wooden log (thuni) to construct pendal of marriage. My grandson Nitin refused to
give the wooden log. Thereafter, quarrel took place between Nitin and me. My grandson Nitin gave a blow of axe on my head. My grandson Nitin and
Motiram Makode caught hold of my hands and my daughterÂinÂlaw Shobha poured kerosene on my person and thereafter, set me on fire. Due to
this, I got burnt. My nephew Pundlik got myself admitted in hospital at 9.20 a.m.â€
However, in the F.I.Rs. Exh.93 and Exh.97, answer to this question is that “ she resides at village Vadner Gangai with her daughter Nanda and
do labour work and the incident took place at the house of her daughterÂinÂlaw Shoba Trimbak Chauhan on 20.5.2012 at 6.00 p.m. when she went
there to get wooden log (thuni) as required by her for constructing fencing. In dying declaration Exh.56, it is nowhere mentioned that, on 20.5.2012,
deceased went at 6.00 p.m. to the house of accused Shobha, which time is specifically found mentioned in Exh.93 as well as Exh.97.
Similarly Exh.93 reveals that when she went and asked for wooden log from accused no.2 Shobha, she refused to part away with it saying that the
wooden log does not belong to “the father of deceased†and started quarelling with her. Exh.56 is silent on the aspect of accused Shobha saying
as aforesaid and inviting quarrel. While as per contents of Exh.56, it is accused no.2 Nitin who is said to have refused to part away with wooden log
and on that count, invited quarrel and committed assault on the head of deceased.
Moreover, as per contents of Exh.93, alleged assault is by accused no.2 Nitin on forehead. While, according to Exh.56, such assault is on her
head. Similarly, other contents in Exh.93 about Durga, wife of grandson of deceased, extinguishing fire by putting quilt on the person of Jamunabai is
missing in dying declaration (Exh.56). No explanation is putforth by prosecution as to how all these facts came to be mentioned in the F.I.R. (Exh.93),
though same are not mentioned by Jamunabai in her dying declaration.
Evidence of PWÂ9 Police Naik Dilip is similar with regards to contents of F.I.R. (Exh.97) when he has deposed that, on receipt of documents in
Crime No.00 of 2012 registered at Daryapur Police Station on 21.5.2012, he registered crime no.21 of 2012 as per F.I.R. Exh.97. Perusal of Exh.97
would show that is is word to word similar to contents of F.I.R. Exh.93. What is material to consider from Exh.97 is there is no mention of fact of
recording dying declaration when injured was admitted in Rural hospital, Daryapur. It appears that PWÂ9 Police Naik Dilip (PWÂ9) had consciously
dropped such fact, though it is mentioned in Exh.93. No explanation is putforth by prosecution with regards to this aspect nor had placed on record
any document in the form of first statement of Jamunabai recorded at Rural hospital, Daryapur as found to be mentioned in F.I.R. Exh.93.
According to the case of prosecution, deceased was forwarded for medical treatment to Irwin hospital at Amravati in which hospital, as per
evidence of PWÂ1 Umesh â€" Executive Magistrate, her statement is recorded as per Exh.56. In view of above evidence, it is found that there is no
earlier version of deceased Jamunabai on record, though it appears to have been recorded, as can be seen from contents of F.I.R. Exh.93. Even
otherwise, there are so many other facts as pointed above, mentioned in F.I.Rs. Exh.93 and 97 which are not found in dying declaration Exh.56. In the
circumstances, we do not find it safe to rely upon Dying declaration Exh.56 being contrary to Exh. Nos. 93 and 97 on material aspects.
Similarly, PWÂ7 Mangala, who has acted as inquest panch, has deposed that Jamunabai was in burnt condition and as per Inquest panchanama
(Exh.84) both upper limbs of deceased are wrapped with bandage. Inspite of that, Exh.56 is having left hand thumb impression of deceased, with clear
ridges. Inquest Panchanama is drawn at Irwin hospital on 22.5.2012 between 3.00 to 3.30 p.m. While Exh 56 Â dying declaration is recorded on
21.5.2012 in the morning. Said case of prosecution of PWÂ1 Umesh obtaining left hand thumb impression on Exh.56 is also falsified from the
evidence of PWÂ10 Dr.Sushil Deshmukh, who had examined the injured in SubÂDistrict hospital, Daryapur on 20.5.2012 at 11.00 a.m. and issued
Injury Certificate (Exh.106), and has admitted in his crossÂexamination that entire palm up to arm of both limb of patient were burnt As such,
reasonable explanation was expected from prosecution as to how PWÂ1 Umesh could obtain left hand thumb impression of deceased on Exh.56.
PWÂ2 Dr. Chandrashekhar Patil, who had examined the injured in the hospital at Amravati before recording dying declaration, has also admitted that
upper portion of body of deceased was fully burnt. So also there is no endorsement by PWÂ1 Umesh â€" Executive Magistrate about reading over
contents of dying declaration to it's maker and she admitting it to be recorded truly as stated by her. Even, according to PWÂ2 Dr.Chandrashekhar,
he did not noticed smell of any chemical substance when he performed autopsy, which aspect is material as it is the case of prosecution that
Jamunabai succumbed to deep burn injuries sustained by her by setting her person on fire on pouring kerosene on her person.
On perusal of forwarding memo to Chemical Analyser vide which seized muddemal property was sent for it's analysis, axe is not found to be sent
for it's examination. However, much weight need not be given to this aspect as, according to medical evidence, cause of death of deceased is not head
injury sustained by her but due to burns. According to C.A. Report (Exh.120), clothes i.e. saree and blouse of accused no.1 Shobha being Article 10
(colly), pant and shirt of accused no.2 Nitin being Article No.8 (colly) and shirt and payjama of accused no.3 Motiram being Article 9 (colly) are all
detected having upon them kerosene residues. Detection of kerosene residues on the clothes of accused as aforesaid in fact creates doubt on the
Seizure Panchanama of the clothes when, according to arrest panchanamas of said accused, PWÂ11 Ramdas Malve, Investigating Officer in clear
terms has admitted that in seizure panchanamas of clothes, axe and plastic can there is no mention of sealing of articles. In the circumstances, even
possibility of sprinkling kerosene on the clothes of appellant cannot be ruled out. Even otherwise, appellants are arrested on 21.5.2012 and 23.5.2012
respectively, while the incident is of 20.5.2012 and there is no reason for them to have same clothes on their person for two days; moreso when they
are stained with kerosene.
In view of facts as aforesaid, no implicit reliance can be placed on the dying declaration Exh.56 as contents thereof and of F.I.Rs. (Exh.93 and 97)
are inconsistent with each other on material aspects and more particularly, when, according to evidence of PWÂ8 ASI Anant, prior to recording of
dying declaration Exh.56 in hospital at Amravati, statement of deceased appears to be recorded at Rural hospital, Daryapur which document is not on
record. In view of above discussion, we do not find it safe to rely on dying declaration (Exh.56).
Since the appellants have not disputed fact of homicidal death of deceased, we are not required to scrutinize evidence of other witnesses like
PWÂ3 Vinod Ghorad, PWÂ4 Gajanan Satrothe and PWÂ5 Gajanan Deokar, who have acted as spot panchas and panch on the alleged memorandum
statement of accused no.2 Nitin or on the evidence of PWÂ6 Ashok Chavan on oral dying declaration as even otherwise neither of these witnesses
have supported the case of prosecution.
In that view of the matter, we find that case of prosecution is full of doubts. We, thus, hold that both the appeals are liable to be allowed. Hence,
the following order.
Criminal Appeal Nos.177 of 2015 and 331 of 2015 are allowed.
Judgment dt.2.3.2015 passed by Additional Sessions JudgeÂ2, Achalpur in Sessions Trial No.79 of 2012 convicting the appellants for the offence
punishable under Section 302 r/w. 34 of the Indian Penal Code is quashed and set aside.
Fine amount, if any, paid by the appellants, be returned back to them.