Oral Judgment: (V.M. Deshpande, J.)
1. Being aggrieved by the judgment and order of conviction passed by learned Sessions Judge, Akola, dated 30th of December, 2013, in Session Trial No.91 of 2011, by which the appellant was convicted for the offence punishable under Section 302 of the Indian Penal Code and was directed to suffer imprisonment for life and to pay a fine of Rs.1000/- and in default of payment of fine to suffer rigorous imprisonment for three months, the appellant is before this Court.
2. A Charge was framed against the present appellant and his parents in Sessions Trial No.91 of 2011 for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. According to the Charge, on 6th of March, 2011 at about 10 p.m. at Takali (Khojbal), Tq.Balapur, Distt.Akola, all the accused persons in furtherance of their common intention, caused death of Smt.Pratibha. Though the parents of the appellant are acquitted by the learned Court below, no appeal questioning their acquittal is filed before this Court by the State.
3. We have heard Shri R.M.Mardikar, learned counsel for the appellant and Shri C.A.Lokhande, the learned Additional Public Prosecutor for the State, in extensive.
4. Though, in the charge, it has been stated that the deceased Pratibha was wife of the present appellant, the said fact is seriously disputed by the appellant. Further, from the evidence of PW 1 Laxmibai, the mother of the deceased, it is clear that Pratibha was married with one Jagdeo Nikhade before three years. However, she was deserted by him due to matrimonial dispute. It is nowhere in the case of the prosecution witness Laxmibai (PW 1), the mother of the deceased or PW 2 Sanghpal, the brother of the deceased that there was divorce between Pratibha and said Jagdeo. According to the prosecution, Pratibha used to reside with the present appellant. In that view of the matter, it is crystal clear that Pratibha was not wife of appellant, at the most they were in live-in-relationship.
5. The date of incident is 6th of March, 2011. As per the evidence of Laxmibai, mother of the deceased, the house of the appellant is situated in fourth lane behind her house. According to the prosecution, the time of the incident is at about 10 p.m. She heard crying of Pratibha and therefore, she along with her son Sanghapal (PW 2) rushed to the house of the appellant to notice that Pratibha was burning. Pratibha was taken to the hospital in an autorickshaw by Sanghpal, Laxmibai and Vilas, brother-in-law of Laxmibai. Said Vilas is not examined by the prosecution. According to the prosecution, in the autorickshaw Pratibha made an oral Dying Declaration to these two prosecution witnesses.
6. The case of the prosecution is solely based on two written Dying Declarations as well as an oral Dying Declarations made to Laxmibai (PW 1) and Sanghpal (PW 2), as claimed by them.
7. According to Laxmibai, Pratibha made an oral Dying Declaration to her as under:
'She told me that her parents-in-law were complaining that she cannot do household work. They asked Pramod to drive her out of house. She further stated that accused Pramod brought a kerosene Can and poured kerosene on her person and burnt her with burning matchstick and then ran away.'
Shri Sanghpal (PW 2) claimed that following Dying Declaration was made:
'On the way, Pratibha told us that accused persons quarrelled with her. Her parents-in-law caught her hands and husband poured kerosene on her person and burnt her.'
Thus, from the aforesaid two Dying Declarations it is crystal clear that on material point the Dying Declarations are at variance. Further, according to Laxmibai, after hearing a noise when she and Sanghpal went to the house of Pratibha that time Pratibha ran out of the house in burning condition and fell in front of the house. This aspect is not corroborated by Sanghpal (PW 2). On the contrary, it is stated by him that when they reached to the house Pratibha was burning inside the house. The spot panchanama is at Exh.50. The perusal of the said panchanama does not reflect any symptoms about the fact of burning inside the house. According to Laxmibai and Sanghpal, the house of the appellant was surrounded by houses of many neighbours. From the evidence of these two witnesses, it is clear that when they reached to the spot, no neighbour was present on the spot. It appears to be unnatural since the voice of Pratibha was heard by Laxmibai and Sanghpal whose house is situated away from the house of the appellant. The house of the appellant was surrounded by neighbours therefore, had really Pratibha shouted for help, the attention of neighbours would have been called and it would have been most natural on their part to gather there.
8. Looking to the material inconsistency in the oral dying Declaration, as claimed by the mother and the brother of the deceased, in our view, it does not inspire confidence and therefore the same are discarded. Insofar as written Dying Declarations are concerned, the first in time is recorded by Shri Vinod Patil (PW 4). He is Executive Magistrate. On 7th of March, 2011, he received requisition from City Kotwali Police Station for recording Dying Declaration of Pratibha. The requisition is at Exh.62. The said was received by Shri Vinod Patil at 7 a.m. Accordingly, he went to the Main Hospital, Akola and met with the concerned doctor and gave him requisition that he should examine the patient and certify about her condition. The said requisition given by him is at Exh.63A. Accordingly, Dr.Shivshankar Khedkar (PW 5) examined patient and gave a certificate that the patient is in a fit condition. The said is given at 7.15 a.m. Thereafter, Shri Vinod Patil proceeded to record the Dying Declaration. According to the Dying Declaration, on 6th of March, 2011 at about 10 p.m. in the night, her husband Pramod and her parents-in-law poured kerosene on her person and set her ablaze. Her husband is habituated to drinks and used to ill-treat her. This is the only four-line Dying Declaration. The Dying Declaration is at Exh.63B. The Dying Declaration does not show that after recording the Dying Declaration the said was read over to the declarent namely; Pratibha and she admits the contents as true. In that view of the matter and in view of the consistent view of this Court in that behalf that if the Dying Declaration is not read over to the declarent and if there is no endorsement that she admits it to be true, the same cannot be considered. Accordingly, we have no hesitation to discard the Dying Declaration (Exh.63A).
9. The another Dying Declaration is Exh.74. The said is treated as First Information Report, on the basis of which a printed FIR (Exh.75) was prepared and a Crime No.24 of 2011 was registered against the appellant for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code.
10. The aforesaid declaration is recorded by Shri Anil Kuralkar (PW 6), the Assistant Police Inspector. At the relevant time Shri Kuralkar was attached to Police Station, Ural. He received a telephone call that Pratibha is admitted in hospital in burnt condition. Accordingly, he took entry in the Station Diary and went to the hospital. However, the said Station Diary is not produced on record. After reaching to the hospital he met Medical Officer Dr.Anant Dawange (PW 3). He requested Shri Dawange to examine Pratibha by giving requisition letter (Exh.73). Accordingly, as per the prosecution Shri Dawange examined Pratibha and gave his endorsement that she is fit to give her statement. The said endorsement is given below Exh.73, the requisition. The fitness Certificate is at Exh.59.
11. After having obtaining the Medical Certificate, Shri Kuralkar proceeded to record Dying Declaration. According to the Dying Declaration, Pratibha was married with one Shri Nikhade. However, due to the discord with him she left him and started residing with the appellant. It is stated that she was not married with the appellant but was intending to marry with him. According to the Dying Declaration (Exh.74), on 6th of March, 2011 the father of the appellant picked up quarrel with her on the count that she is unable to do proper cooking. Thereupon, deceased asked the father of the appellant that said should be asked to his wife namely; the mother of the appellant. On that count, there was a quarrel between the parents of the appellant and the deceased. It is further stated that after two hours i.e. at 9 O'oclock the appellant came under the influence of liquor and picked up quarrel with her. At 10 O'clock in the night the appellant asked her to bring kerosene for killing her, upon that Pratibha said that she will not bring kerosene therefore he brought kerosene and poured on her person and set her ablaze.
12. Therefore, it is clear that there is a variance in the prelude of the Dying Declaration (Exh.74) recorded by PW 6 Anil Kuralkar, Investigating Offer, and the Dying Declaration (Exh.63A) recorded by Dr. Vinod Patil (PW 4). Leave apart the said, when Dr.Dawange was under the cross-examination, he has admitted that there were 10 to 12 rel
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atives of the patient in the Ward. If that be so, the tutoring at their behest cannot be completely ruled out, especially when in the statement recorded under Section 313 of the Code of Criminal Procedure of the appellant it has been stated by the appellant that he was never ready for the marriage with Pratibha. It is amply proved on record that Pratibha was not his wife and she was trying to marry with the appellant. Once there is a iota of suspicion that the tutoring is possible then it is unsafe to accept such a Dying Declaration. 13. Upshot of the above discussion leads us to pass the following order. ORDER The appeal is allowed. The judgment and order of conviction under Section 302 read with Section 34 of the Indian Penal Code, dated 30th of December, 2013 passed by Sessions Judge, Akola in Sessions Trial No.91 of 2011 is quashed and set aside. The appellant is acquitted of the said offence. The appellant be set at liberty if not required in any other Crime.