Bombay High Court
Bapu (Nandu) Prabhu Koli@Raut vs The State Of Maharashtra on 23 July, 2018
Equivalent citations: AIRONLINE 2018 BOM 437
Author: S.S. Shinde
Bench: S.S. Shinde, V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.429 OF 2013
Bapu (Nandu) Prabhu Koli @ Raut,
Age-36 years, Occu:Labour,
R/o-Khed, At present Kakramba,
Tq-Tuljapur, Dist-Osmanabad.
...APPELLANT
VERSUS
The State of Maharashtra,
Through Tuljapur Police Station,
Tq-Tuljapur, Dist-Osmanabad.
...RESPONDENT
...
Mr.Avishar S. Shelke Advocate appointed for
Appellant.
Mr.K.S. Hoke Patil, A.P.P. for Respondent.
...
CORAM: S.S. SHINDE AND
V.K. JADHAV, JJ.
DATE OF RESERVING JUDGMENT : 12TH JULY, 2018.
DATE OF PRONOUNCING JUDGMENT: 23RD JULY, 2018.
JUDGMENT [PER S.S. SHINDE, J.]:
1. This Appeal is directed against the
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Judgment and order dated 26th July, 2013, passed
by the Sessions Judge, Osmanabad in Sessions Case
No.52 of 2012, thereby convicting the
accused/Appellant - Bapu (Nandu) Prabhu Koli @
Raut for the offence punishable under Section 302
of the Indian Penal Code (for short "I.P. Code")
and sentencing him to suffer imprisonment for life
and to pay fine of Rs.10,000/- (Rupees Ten
Thousand only), and in default of payment of fine,
to suffer rigorous imprisonment for a year.
2. The prosecution case, in brief, is as
under:
A) Deceased Varsha Bapu Koli was wife of
the accused who died on 4th February, 2012. Varsha
died due to burn injuries in a civil hospital,
Osmanabad. She sustained burn injuries to the
extent of 88%, on 24th January, 2012 at 9.30 p.m.
B) The deceased and accused belong to labour
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class. Both were doing labour work for daily
wages, on a brick-kiln. They are having children.
One Manoj Ghogare is owner of the brick-kiln,
which is about 1 K.M. away from Kakramba village.
Said Manoj Ghogre appears to have made
arrangements for resident of the labourers near
the kiln. About 30 hutment like structures of
bricks, covered with tins having open Varanda in
front of each room, have been provided to the
workers for their residence. In a third room from
South side, accused and his wife along with
children, were residing and other labours were
residing in other rooms. This residential place of
the deceased is a place of incident.
C) The place of incident at Kakramba is in
Tuljapur police station area. On 24th January,
2012 a lady patient was taken to civil hospital,
Tuljapur, for treatment of burn injuries.
Immediately, she was referred to civil hospital,
Osmanabad. Police officer of Tuljapur police
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station made a request to Osmanabad (City) police
station for recording statement of the patient.
Police Naik on duty at the police chowki of civil
hospital, Osmanabad was instructed to record the
statement of the patient, so admitted in civil
hospital, Osmanabad.
D) Police Naik Fulari (PW-3) was on duty in
the police chowki in civil hospital, Osmanabad. He
contacted Dr. Sable (PW-4), on duty and requested
him to show the patient and to accompany with him.
They both went to burns ward. The wife of the
accused was admitted there. On 25th January, 2012,
between 2.00 a.m. to 2.30 a.m., Police Naik Fulari
recorded a statement of the deceased in a printed
proforma used for recording of a dying
declaration. He handed over statement to Osmanabad
(City) police station. Osmanabad City police
station transmitted the same to police station,
Tuljapur.
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E) The patient died on 4th February, 2012.
Osmanabad city police conducted usual A.D. enquiry
under Section 174 of the Code of Criminal
Procedure (for short "Cr.P.C."). An inquest
panchnama (Exhibit-20) prepared and postmortem
(Exhibit-27) conducted. The dying declaration was
sent to Tuljapur police station, disclosing the
commission of cognizable offences, therefore
police took cognizance to register crime against
accused. A.P.I. Sable (PW-6) investigated into the
offences.
F) A.P.I. Sable conducted the spot panchnama
(Exhibit-15). He arrested the accused and
collected 174 Cr.P.C. inquiry papers. Muddemal
seized was sent to C.A. examination. In due course
he received C.A. report. During investigation, he
contacted the persons supposed to be acquainted
with the facts of the case to record their
statements. He finally submitted a charge-sheet
against the accused in the Court of J.M.F.C.,
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Tuljapur. Dying declaration itself disclosed that,
accused subjected the deceased, being his wife, to
cruelty and beat her upon suspecting her character
and finally on 24th January, 2012, at 9.00 p.m.
poured kerosene on her person and set her ablaze.
In due course, learned J.M.F.C. committed the case
to the Court of Sessions.
G) A charge was framed against the accused.
At the time of framing of charge, substance of
accusation was read over and explained to the
accused. Accused pleaded not guilty and claimed to
be tried, with the defence of total denial.
3. After recording the evidence and
conducting full fledged trial, the trial Court
convicted the accused for the offence punishable
under Section 302 of the I.P. Code and sentenced
him to suffer imprisonment for life and to pay a
fine, as afore-stated. Hence this Appeal by the
accused.
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4. Heard learned counsel appearing for the
Appellant and learned A.P.P. appearing for the
State, at length. With their able assistance, we
have carefully perused the entire notes of
evidence, so as to find out whether the findings
recorded by the trial Court are in consonance with
the evidence brought on record or otherwise.
5. The prosecution has examined in all six
witnesses. PW-1 Datta Uttam Bansode, is a
neighbour of the accused, who turned hostile and
did not support the prosecution case. PW-2 Satish
Dattatraya Pawar is a panch to the seizure
panchnama (Exhibit-27) regarding the seizure of
sweater on the person of accused. PW-3 Rajesab
Akbarsab Fulari, is the police head constable, who
recorded the dying declaration Exhibit-23. PW-4
Dr. Bhaskar Mahadeo Sabale is the medical officer
who has put an endorsement regarding the
consciousness of the patient, before and after
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recording the dying declaration. PW-4 Dr. Bhaskar
Sabale has also carried out post-mortem on the
dead body of Varsha. PW-5 Bhimrao Maruti Gadhave
is a carrier who carried the muddemal articles to
the office of the Chemical Analyzer. PW-6 Suresh
Namdeorao Sabale is the investigating officer, who
deposed about the manner in which he has carried
out the investigation.
6. First of all, we will examine the oral
evidence of PW-3 Rajesab Akbarsab Fulari, Police
Naik, who has recorded the dying declaration
Exhibit-23. He deposed that in the month of
January, 2012, he was attached to city police
station, Osmanabad. He was on duty as Police
Chowki Amaldar on 24th January, 2012, in the civil
hospital, Osmanabad. Police station officer of
city police station, Osmanabad telephonically
informed him at about 1.00 O'clock during
intervening night of 24th January, 2012 to 25th
January, 2012, that a woman namely Varsha Bapu
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Koli of village Kakramba has been admitted in
civil hospital, Osmanabad in burn-injured
condition to the extent of 80% burn and he should
see her and record her statement and send it to
Tuljapur police station. He collected a printed
form from the Chowki. Duty medical officer was Dr.
B.N. Sable. He went to Dr. Sable and informed him
about the admission of said patient and her
location and asked Dr. Sable that he wanted to
take her statement. Dr. Sable told that she was
admitted in burn ward. He requested Dr. Sable to
accompany him and accordingly Dr. Sable
accompanied him. They both went to burn ward. He
saw that patient was in burn condition. There were
relatives of the said patient near her. He asked
the relatives to go out side. He also requested
the doctor to certify whether the patient was in a
position to give statement. Doctor examined the
patient and told him that she was in a position to
give statement, and accordingly endorsed on the
upper side of the proforma form. He then proceeded
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to record her statement. He asked her name, she
told her name to be Varsha Bapu Koli, resident of
Kakramba. As per the form questionary, he asked
her questions and she gave answers. Accordingly he
reduced it into writing. Varsha told him during
the course of declaration that her husband was
harassing her and beating her as he was suspecting
about her character. On 24th January, 2012, at
about 9.00 p.m. when she woke up for nature's
call, her husband poured kerosene on her person
and set her on fire, thereby she got burn injuries
on whole of the body. She also told him that after
making hue and cry, the neighbouring persons
extinguished the fire by pouring water and she was
admitted in the hospital by her brother and
mother. The statement accordingly has been reduced
into writing, as per her narration. It was read
over to her. He asked Varsha to put her right hand
thumb impression on it. She accepted the contents
to be true. He again requested doctor to examine
the patient whether she consciously gave
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statement. Doctor examined the patient and
accordingly endorsed that she was conscious during
the course of recording the statement. The witness
thereupon put his signature on the statement. The
dying declaration is at Exhibit-23. He send the
dying declaration along with the report
(Exhibit-24) to police station, Osmanabad (city).
He also informed the Special Executive Magistrate
by letter, to record the dying declaration of said
patient. The counter part of the letter is at
Exhibit-25.
7. During the course of cross-examination,
PW-3 Rajesab Fulari stated that the police chowki
in the civil hospital situates near the entrance
gate of civil hospital. The burn or injured
patients if admitted in hospital, MLC entry is
made in the Chowki. Such MLC entry was not taken
in respect of this patient in the police chowki.
The format used for taking dying declaration is
kept in chowki, and the same is printed in the
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name of Special Executive Magistrate, namely,
Bansode Manik Sakhahari. He further stated that
dying declaration is in his handwriting. Dr. Sable
was sitting in DMO office, which is on the ground
floor of the hospital. He did not request in
writing to doctor Sable. The burn ward is on the
ground floor in the back side. He did not know who
was medical officer on duty in the burn ward and
whether any medical officer was on duty in the
burn ward. He did not know how many patients were
admitted in the burn ward during night of 24th
and 25th January, 2012. He has not mentioned in
the statement as to whether the thumb impression
is of leg or hand. He has not obtained stamp of
the hospital below the signature of the doctor.
The patient was crying due to pains because of
burn injuries. Saline was administered to her. He
went to Dr. Sable at about 1.45 midnight. They
reached burn ward within five minutes. Doctor
examined patient for about five minutes.
Previously also he has recorded about 10 to 20
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dying declarations. He has sent the dying
declaration of the patient to city police station
to send it to Tuljapur police station. He has sent
the dying declaration in original.
8. Thus, it is clear from perusal of the
evidence of PW-3 Rajesab Fulare that he recorded
the dying declaration Exhibit-23. He has
specifically deposed that Varsha stated that
on 24th January, 2012, at about 9.00 p.m., when
she woke up for nature's call, her husband poured
kerosene on her person and set her on fire. We
have carefully perused dying declaration
Exhibit-23. About the main incident, it is written
in the dying declaration that, Varsha was sleeping
in her house. At about 9.00 p.m. she started to go
out of the house for attending nature's call. At
that time her husband Bapu Koli @ Raut has poured
kerosene on her person and set her ablaze by
igniting match stick.
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9. The prosecution has examined PW-4 Dr.
Bhaskar Mahadeo Sabale. He deposed that since 2004
he was working as medical officer in civil
hospital, Osmanabad. On 24th January, 2012 he was
in the hospital on night DMO duty, from 9.00 p.m.
to 8.00 a.m. in the morning of next day. Patient
Varsha Bapu Koli was admitted in the hospital. She
was referred from Tuljapur Rural Health Center. It
was a burnt case and therefore she was admitted in
burn ward. He asked the history to the patient and
she stated that, she herself poured kerosene on
her body and her husband set her on fire at 9.35
p.m., on the same day. At about 1.45 a.m., Police
Chowki Amaldar came to him for recording her dying
declaration. He has shown him the patient. The
relatives of the patient were directed to wait
outside the burn ward. PW-4 Dr. Bhaskar Sable
further deposed that he examined the patient on
the request of police personnel. Patient was
conscious and oriented. He certified accordingly
on the top of the printed form of the dying
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declaration. The endorsement was shown to him and
he identified the same. He further deposed that
the police officer then asked the questions as per
the proforma. Patient answered and the police
officer took down the answers on the proforma.
Accordingly, dying declaration of Varsha was
recorded in his presence. It was read over to the
patient. Again police officer requested him to
certify whether the patient was conscious. He
certified, after examination, that she was
conscious. He again made endorsement on the lower
part of overleaf of the proforma. He has
identified his endorsements and signatures. He
further deposed that at the time of recording the
dying declaration (Exhibit-23), he himself, police
officer and patient were only present. The patient
expired on 4th February, 2012. Medical officer on
duty informed him for conducting post-mortem. Head
constable Kolangade brought the dead body in post-
mortem room along with inquest panchnama, letter
and report. Request was made to make a post-mortem
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for ascertaining exact cause of death. He himself
and Dr. Gilbile conducted post-mortem on 4th
February, 2012, between 9.15 a.m. to 10.15 a.m.
The dead body was of female of 25 years. He has
recorded the injuries in Column No.17 of post-
mortem report accordingly. The cause of death was
"shock due to 88% superficial to deep burn". He
has accordingly filled up the post-mortem report
in his handwriting. The post-mortem report
Exhibit-27 bears his signature and signature of
Dr. Gilbile and stamp of the hospital. He further
deposed that the contents of post-mortem report
are correct. The injuries mentioned in Column
No.17 are sufficient to cause death.
10. During the course of cross-examination,
PW-4 Dr. Bhaskar Sabale stated that there is no
seal of the hospital or registration number below
his signature on the upper part of the dying
declaration Exhibit-23. There is no endorsement
regarding MLC recorded in dying declaration. He
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did not remember the name of doctor who was on
duty, on call in the burn ward on that day. He did
not remember whether medical officer on call duty
was present or not when he went in the burn ward
on that day. He further stated that immediately
after police officer came to him, they went to
burn ward. He inquired with patient orally about
her name, age, village, for understanding the
consciousness, and recorded her pulse rate to see
whether she was oriented and conscious. He denied
the suggestion that sedative medicines were
administered to patient to relieve her from pains
and that the patient was subconscious because of
sedative medicines. He further stated that there
were other admitted patients in the burn wards on
that day. Police officer did not give his request
for taking dying declaration in writing. In case
of superficial to deep burn there is loss of
fluid. He admits that nerve ends are destroyed
because of loss of fluid in the case of burn
injuries. He further admits that rule of 9 O'clock
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is applied to the dead body. Face, chest, neck,
stomach have been damaged due to burn injuries. He
has not done the test to see potency of vocal sac
medically. He is not burn expert doctor. He has
not completed any burn expert diploma. He is ready
to produce papers regarding history told by
patient at the time of admission. He further
stated that he did not remember whether thumb
impression of hand or leg of that lady was
obtained on dying declaration.
11. It is significant to note that PW-4 Dr.
Bhaskar Sable has deposed that patient Varsha Bapu
Koli was admitted in the hospital and he asked the
history to the patient. He has further stated in
clear terms, that Varsha told history that she
herself poured kerosene on her person and her
husband set her on fire at 9.35 p.m. on 24th
January, 2012. Admittedly, Varsha died due to burn
injuries. PW-3 Rajesab Fulari and PW-4 Dr. Bhaskar
Sable are the only star witnesses of the
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prosecution. The entire prosecution case rests
upon the sole dying declaration recorded by PW-3
Rajesab Fulari, Police Naik. It is the prosecution
story that accused poured kerosene on the person
of Varsha and set her on fire. However, the
medical officer who has immediately attended
Varsha when she was admitted in the hospital, has
stated in clear words, that patient told him the
history that she herself poured kerosene on her
person and her husband set her on fire. Except the
dying declaration Exhibit-23, the prosecution has
not brought on record any other dying declaration.
It is note the case of the prosecution that Varsha
has given oral dying declaration to her relatives.
The entire prosecution case revolves around the
dying declaration Exhibit-23. There is material
variance in the core of the prosecution case. The
contents of the dying declaration Exhibit-23 shows
that Varsha has stated that her husband poured
kerosene on her person and set her on fire.
However, as observed earlier, the medical officer
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PW-4 Dr. Bhaskar Sable has stated in clear words
that patient told him the history that she herself
poured kerosene on her person and her husband set
her on fire. There is no other evidence
corroborating the dying declaration Exhibit-23.
When there is material variance in the dying
declaration and the history recorded by the
medical officer when the patient was admitted in
the hospital, it is unsafe to rely upon such sole
dying declaration and convict the accused, when
the dying declaration is not at all corroborated
by any other evidence. It is stated by Varsha in
his dying declaration that after receiving burn
injuries, she started shouting. Upon hearing her
shouts, the neighbours came there and then they
extinguished the fire by sprinkling water on her
person. She further stated that her brother and
mother shifted her to the hospital. It is
pertinent to note that the prosecution has not
examined any neighbour of Varsha, who immediately
after the incident, visited the house of Varsha
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and tried to extinguish the fire. The only
neighbour examined by the prosecution is PW-1
Datta Uttam Bansode, but he turned hostile and did
not support the prosecution case. The prosecution
has not examined brother or mother of the
deceased, according to Varsha, who shifted her in
the hospital. PW-3 Rajesab Fulari has deposed in
his examination-in-chief that he informed the
Special Executive Magistrate by letter to record
the dying declaration of Varsha. However, for the
best reasons known to it, the prosecution has not
brought on record another dying declaration
recorded by the Special Executive Magistrate.
Thus, the prosecution has suppressed material
document of dying declaration.
12. In the case of Abdul Riyaz Abdul Bashir
vs. State of Maharashtra1, the Division Bench of
the Bombay High Court, Bench at Nagpur, observed
in Para-12 as under:
1 2012 All M.R.(Cri) 2188
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" In these circumstances, it becomes clear
that the prosecution has suppressed another
dying declaration deliberately. It was
neither produced on record and nor the
witnesses have stated that the statement of
the deceased was recorded on two occasions.
The very fact that the investigating
officer has proved the omissions elicited
in the statement of the witnesses, it is
clear that till 19.1.2005 none of the
witnesses had disclosed to the police that
the deceased had made an oral dying
declaration before them implicating the
accused for being responsible for her
death".
. In Para-13 of the Judgment, the Division
Bench further observed that:
"The evidence of PW1 would show that soon
after the incident, she has seen the
appellant taking Nargis to the Hospital.
The dying declaration will have to be read
as a whole. It cannot be divided into two
different parts. The integral part of the
dying declaration is based upon the
periphery of the statement and the
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contents are neither coherent nor cogent
to inspire the confidence of the Court and
hence we hold that the dying declaration
of deceased Nargis recorded by PW-8 which
is at Exh.63 cannot be made the sole
ground for convicting the accused for an
offence punishable under Section 302 of
I.P.C."
13. As already observed, though PW-3 Rajesab
Fulari stated in his examination that he informed
the Special Executive Magistrate by letter
(Exhibit-25) to record the dying declaration of
said patient, the prosecution has not placed on
record the dying declaration recorded by the
Special Executive Magistrate. Perusal of the
charge-sheet shows the names of proposed witnesses
to be examined by the prosecution. In the said
list of proposed witnesses, at Sr. No.6, name of
one P.M. Sontakke, Taluka Executive Magistrate is
mentioned, and against his name it is mentioned
that he has recorded the dying declaration of the
deceased. But the prosecution has not placed on
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record the said dying declaration recorded by
Taluka Executive Magistrate. The dying declaration
recorded by the Executive Magistrate stands on
much higher footing than the dying declaration
recorded by any other person. In view of the
exposition of law by the Supreme Court in the case
of Khushal Rao vs. State of Bombay 2, the dying
declaration recorded by a competent Magistrate in
the proper manner, that is to say, in the form of
questions and answers, and, as far as practicable,
in the words of the maker of the declaration,
stands on a much higher footing than a dying
declaration which depends upon the oral testimony
which may suffer from all the infirmities of human
memory and human character.
14. In the present case there is no
corroboration to sole dying declaration recorded
by the police and therefore it is unsafe to rely
upon sole dying declaration and convict the
2 A.I.R. 1958 S.C. 22 (V 45 C 4)
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appellant. In the case of Surinder Kumar vs. State
of Haryana3, the Supreme Court in Para 14 of the
Judgment, observed thus:
"14. Another important aspect relating to
failure on the part of prosecution is that
on the date of the incident, the deceased
had two children aged about six and four
years respectively and both of them were
present there, admittedly, the I.O. has not
enquired them about the genuineness of the
incident. Though, there are number of
immediate neighbours/co-tenants in the same
premises, their statements were not
recorded which means that nobody supported
the version of the prosecution. Though
there is neither rule of law nor of
prudence that dying declaration cannot be
acted upon without corroboration but the
court must be satisfied that the dying
declaration is true and voluntary and in
that event, there is no impediment in
basing conviction on it, without
corroboration. It is the duty of the court
to scrutinise the dying declaration
carefully and must ensure that the
declaration is not the result of tutoring,
prompting or imagination. Where a dying
3 2012 ALL M.R. (Cri) 696 (S.C.)
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declaration is suspicious, it should not be
acted upon without corroborative evidence.
Likewise, where the deceased was
unconscious and could never make any
declaration the evidence with regard to it
is rejected. The dying declaration which
suffers from infirmity cannot form the
basis of conviction. All these principles
have been fully adhered to by the trial
Court and rightly acquitted the accused and
on wrong assumption the High Court
interfered with the order of acquittal."
15. It is the case of the prosecution that
the accused and his wife were working as labour on
a brick-kiln. The owner of the brick-kiln had
constructed about 30 hutment in which the labours
were residing, including the accused and his wife.
Thus there were number of immediate neighbours in
the same premises, however the prosecution has
examined only PW-1 Datta Uttam Bansode. It is
pertinent to note that he also turned hostile and
did not support the prosecution case. Therefore,
his evidence is of no use to the prosecution.
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Thus, the prosecution has failed to examine any
other neighbour of the accused to support the
prosecution case. Though the original record and
proceeding reveals that on the date of incident,
the deceased had two children, namely Krishna and
Babali, aged about five years and two and half
years respectively, the prosecution has not
brought on record whether the investigating
officer had made enquiry with them about the
genuineness of the incident. Further, it is the
case of the prosecution that after the incident,
Varsha was shifted to the hospital by his brother
and mother. However, the prosecution has failed to
examine all these material witnesses.
16. The Supreme Court in the case of Prabhat
alias Bhai Narayan Wagh and others vs. State of
Maharashtra4, in Para 11 of the Judgment observed
as under:-
"11. We find discrepancies in the
4 (2013) 10 S.C.C. 391
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version given at the very initial stage.
The discrepancies and contradictions
noticed by the trial court were found to
be minor in nature by the High Court, but
in order view, there is serious flaw in
the conduct of the case by the
prosecution and the discrepancies and
contradictions pointed out by the trial
court cannot be ignored as minor. No
explanation is forthcoming as to why
Shobhana Parkar was not examined in this
case. Even according to the prosecution,
Shobhana Parkar had also received
injuries on her arm when she tried to
intervene. The prosecution story is that
the deceased Sanjay Gaonkar ran to the
house of Shobhana Parkar and that he was
attacked just inside the door of the
house of Shobhana Parkar. If that being
so, in our view, Shobhana Parkar, who
herself was injured and tried to
intervene, was a crucial witness. Non-
examination of Shobhana Parkar as well as
the contradictory versions in Ext. 28 and
Ext. 27 as well as the discrepancies and
omissions pointed by the trial court,
create a dent in the prosecution story.
17. As already observed, there is material
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variance in the core of the prosecution case as to
who has poured kerosene on the person of Varsha.
In the dying declaration, Varsha has stated that
her husband poured kerosene on her person and set
her on fire. As against this, PW-4 Dr. Bhaskar
Sabale, who treated the patient when she was
admitted in the hospital, has categorically
deposed that he asked the history to the patient
and she told that she poured kerosene on her body
herself and her husband set her on fire. We have
carefully perused the sole dying declaration
Exhibit-23. Though there appears to be an
endorsement of the doctor before recording and
after recording the dying declaration about
consciousness of the patient, there is no seal of
the hospital, below the signatures of the doctor.
Further, below the dying declaration there appears
to be thumb impression of the deceased but the
same is not attested by anybody. Admittedly after
the incident, Varsha was shifted to the hospital
by her brother and mother and therefore the
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possibility of tutoring cannot be ruled out. We
are not satisfied that the dying declaration is
true, voluntary and without any suspicion. It is a
matter of record that Varsha sustained 88% burn
injuries and therefore it is difficult to believe
that she was fully conscious and well oriented
while giving the dying declaration. Thus, we are
of the considered view that the dying declaration
is suspicious and therefore the same cannot form
the basis of conviction.
18. The prosecution has not examined any
single witness to show that at the time of
incident the accused was present in the house, so
as to shift the burden of proof on the appellant-
accused as per Section 106 of the Evidence Act.
19. We have perused the Judgment and order
passed by the trial Court. The reasons recorded by
the trial Court are very cryptic. The trial Court
has not appreciated entire evidence brought on
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record in its proper perspective and reached to a
wrong conclusion. The findings recorded by the
trial Court are not in consonance with the
evidence brought on record. The trial Court has
acquitted the accused from the offence punishable
under Section 498-A of the I.P. Code. However, on
the same set of evidence, the trial court has
convicted the accused for the offence punishable
under Section 302 of the I.P. Code. Since the
Appellant is acquitted from the offence punishable
under Section 498-A of the I.P. Code, the motive
as per the prosecution case, for the commission of
alleged offence by the Appellant, punishable under
Section 302 of the I.P. Code, is not at all
established.
20. In the light of discussion in foregoing
paragraphs, an inevitable conclusion is that the
Appellant is entitled for the benefit of doubt.
Hence we pass the following order:
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O R D E R
(I) The Criminal Appeal is allowed. (II) the Judgment and order dated 26th July, 2013, passed by the Sessions Judge, Osmanabad in Sessions Case No.52 of 2012, thereby convicting the accused/Appellant - Bapu (Nandu) Prabhu Koli @ Raut for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life, is quashed and set aside.
(III) The Appellant is acquitted of the offence punishable under Section 302 of the Indian Penal Code. Fine amount, if deposited as per the impugned Judgment and order, be refunded to the Appellant. ::: Uploaded on - 23/07/2018 ::: Downloaded on - 25/07/2018 01:32:57 :::
cria429.13 33 (IV) The order passed by the trial Court to the extent of acquitting the accused of the offence punishable under Section 498-A of the Indian Penal Code is hereby confirmed.
(V) The Appellant - Bapu (Nandu) Prabhu Koli @ Raut is in jail, he be set at liberty forthwith, if not required in any other case. (VI) The Appellant shall furnish Personal Bond of Rs.15,000/- and surety in the like amount under Section 437-A of the Code of Criminal Procedure, before the concerned trial Court at Osmanabad.
(VII) Since Mr. Avishkar S. Shelke learned counsel is appointed to prosecute the cause of the Appellant, ::: Uploaded on - 23/07/2018 ::: Downloaded on - 25/07/2018 01:32:57 ::: cria429.13 34 his fees and expenses are quantified at Rs.7,500/- (Rupees Seven Thousand Five Hundred only).
[V.K. JADHAV, J.] [S.S. SHINDE, J.] asb/JUL18 ::: Uploaded on - 23/07/2018 ::: Downloaded on - 25/07/2018 01:32:57 :::