Bombay High Court
Pandit S/O. Ananda Patil (Borse vs The State Of Maharashtra on 18 October, 2008
Author: P.R. Borkar
Bench: P.V. Hardas, P.R. Borkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO.553 OF 2006
WITH
CRIMINAL APPEAL NO.763 OF 2006
* * * * *
CRIMINAL APPEAL NO.553 OF 2006
Pandit s/o. Ananda Patil (Borse)
Age 43 years, Occ. Labour work,
resident of Chhadwel (Korde),
Tal. Sakri, Dist. Dhule. ]..Appellant
VERSUS
The State of Maharashtra ]..Respondent
Shri R.N. Dhorde h/f. Shri B.P. Suryawanshi, Advocate
for the appellant.
Shri K.G. Patil, A.P.P. for the respondent/State.
WITH
CRIMINAL APPEAL NO.763 OF 2006
The State of Maharashtra ]..Appellant
VERSUS
Pandit s/o. Ananda Patil (Borse)
Age 43 years, Occ. Service,
resident of Chhadvel (Korde),
Tal. Sakri, Dist. Dhule. ]..Respondent
Shri K.G. Patil, A.P.P. for the appellant/State.
Shri R.N. Dhorde h/f. Shri B.P. Suryawanshi, Advocate
for the respondent.
CORAM : P.V. HARDAS &
P.R. BORKAR, JJ.
DATED : 18th OCTOBER, 2008.
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JUDGMENT :[PER : P.R. BORKAR,J.] :-
. Both these appeals are directed against judgment and order passed by the learned Ist Adhoc Additional Sessions Judge, Dhule, in Sessions Case No.61 of 1992 decided on 24.07.2006. Criminal Appeal No.553 of 2006 is filed by original accused No.5-Pandit being aggrieved by his conviction under Section 302 and 307 of the I.P.C. and sentence to suffer imprisonment for life and to pay a fine of Rs.2000/-
in default to undergo rigorous imprisonment for three months for offence under Section 302 of the I.P.C. and sentence to suffer rigorous imprisonment for 10 years and to pay fine of Rs.1000/- in default to undergo rigorous imprisonment for one month for offence under Section 307 of the I.P.C. Criminal Appeal No.763 of 2006 is filed by the State for enhancement of sentences awarded to said accused No.5-Pandit. The State Government had also filed Criminal Appeal No.762 of 2006 against acquittal of other accused persons, but same was dismissed at the stage of admission.
2. Original accused No.5-Pandit (hereinafter referred to as "appellant-Pandit") was convicted for ::: Downloaded on - 09/06/2013 13:59:57 ::: ( 3 ) causing deaths of his uncles Dipchand Deoram Patil, Shivlal Deoram Patil and Narayan alias Nanabhau Deoram Patil. He is convicted of attempting to commit murder of complainant P.W.1-Yashwant Ananda Patil and other witnesses.
3. Originally six accused persons were put on trial. Certain facts can be stated as undisputed as regarding them many witnesses have deposed and the defence does not dispute them. Thus, accused No.1 Ananda Nanabhau, had brothers, namely, deceased Narayan deceased Dipchand and deceased alias Shivlal.
Accused No.2 Panabai is wife of accused No.1 Ananda.
Accused No.4-Milind is his grandson. Accused No.5-Pandit is son of accused No.1 Ananda. Accused No.3-Rajendra Sitaram Shinde is son-in-law of accused No.1. Accused No.6 Vidhyabai is daughter-in-law of Ananda being wife of his another son Vishwas. Ananda has six sons in all, namely, Atmaram who is father of accused No.4-Milind, present appellant-Pandit, P.W.1-Yashwant, Vishwas-husband of accused No.6-Vidhyabai, Devidas and Baliram. Pandit was serving at Pune at the relevant time and it is also defence case that on 11.04.1992 he had come to village Chhadwel (Korde), Tal. Sakri, Dist. Dhule for ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 4 ) attending a fair at nearby temple. P.W.8-Kedji is son of Rupchand, who was brother of accused No.1-Ananda.
Rupchand had died prior to the incident. P.W.14-Sarla is daughter of deceased Dipchand. There is no dispute regarding above said relationship.
4. It is further prosecution case (regarding which there is sufficient evidence of prosecution witnesses and also about which there is no more dispute) that sons of accused No.1-Ananda, namely, P.W.1-Yashwant ig and Devidas were demanding Accused No.1-Ananda and his other sons refused to give partition.
any property in partition to P.W.1-Yashwant and Devidas. In-fact, both of them were living separately from accused No.1-Ananda. Both P.W.1-Yashwant and Devidas were residing as tenants in the house of deceased Narayan.
5. It is case of prosecution as disclosed in oral evidence that prior to the incident on earlier evening i.e. on 11.04.1992, there was meeting at the house of deceased Narayan, which was attended by deceased Narayan, deceased Dipchand, deceased Shivlal, P.W.-Kadji, P.W.1-Yashwant and Devidas. In the meeting it was decided to take bricks and mud which ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 5 ) are construction material, to the house of accused No.1-Ananda and to erect a wall in tin portion of the house of accused No.1-Ananda, so as to provide separate residential accommodation to P.W.1-Yashwant and Devidas. Accordingly on 12.04.1992, which is day of the incident, at about 7.00 a.m. all these persons had gone with five bullock carts to a dry tank near the village where there was a brick-kiln. The bricks and mud were loaded in bullock carts. The bullock carts were taken to the house of accused No.1-Ananda and were unloaded and as per prosecution while bullock carts were returning after unloading, the incident had occurred.
6. It is now well established by medical evidence and also other evidence that P.W.1-Yashwant, deceased Dipchand, deceased Shivlal, deceased Narayan, original accused No.4-Milind and appellant Pandit had sustained burn injuries. All of them were first taken to the primary health centre at Sakri and then some of them were shifted to the Civil Hospital, Dhule. As a result of burn injuries Dipchand, Shivlal and Narayan died. It has also come in the evidence that one bullock cart was damaged and a bullock had sustained burn injury in the incident.
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7. The prosecution wants to rely on dying
declarations of deceased Dipchand, deceased Shivlal
and deceased Narayan recorded by Police and their
common dying declaration recorded by the Executive
Magistrate P.W.15-A.P.Suryawanshi. The statement of
Yashwant was recorded in the hospital was treated as
F.I.R. and the crime was registered. P.W.1-Yashwant
was also party to the common dying declaration
recorded by P.W.15 - A.P.Suryawanshi. Besides the
dying
P.W.1-Yashwant,
declarations, there
P.W.5-Devidas
is oral evidence
Popat Bedse.
of
P.W.5-Devidas Bedse is different from Devidas s/o.
Ananda to whom reference was made earlier. In-fact,
Devidas Ananda Patil is not examined. There is also
evidence of P.W.8-Kadji Rupchand Borse, who was also
injured and P.W.14-Sarla Nandu Patil, who is daughter
of deceased Dipchand. Evidence of P.W.6-Sahebrao
Borse is relevant to show that Pandit had procured
petrol which according to the prosecution was used by
him in causing burn injuries to deceased persons,
P.W.1-Yashwant and P.W.8-Kadji.
8. The learned advocate for the appellant-Pandit Shri R.N.Dhorde attacked the dying declarations and ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 7 ) oral evidence of above said witnesses stating that right from the first dying declaration, the prosecution witnesses have changed their story as to how the incident had occurred. The prosecution did not explain the injuries on accused No.4-Milind and appellant-Pandit, who was original accused No.5. The story was inherently improbable. The scene of offence is also changed. It is argued that appellant-Pandit should be acquitted by giving him benefit of doubt.
The learned A.P.P. Shri K.G. Patil supported the prosecution.
person He sated that the burn injuries on of appellant-Pandit proves his presence.
the The involvement of Pandit is consistently stated by all.
The Trial Court has properly separated the truth from the falsehood and the appeal filed by appellant-Pandit should be dismissed.
9. Before we go to the dying declarations and the evidence of witness P.W.6-Sahebrao, we may refer to other evidence regarding which there is no challenge, so that in the light of said evidence, we can verify the veracity and evidentiary value of various pieces of evidence.
10. P.W.2-Dr. V.N. Patil examined at Exh.81 has ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 8 ) stated that he performed post mortem on the dead body of Dipchand Deoram Patil on 13.04.1992. He found superficial to deep injuries which were in all 91%.
P.W.3-Dr.B.S.Kulkarni examined at Exh.83 has stated that he performed post mortem on the dead body of Shivlal Deoram Patil on 22.04.1992 and found 85% superficial to deep burn injuries. P.W.4-Dr.P.B. Patil examined at Exh.85 has stated that he performed post mortem on the dead body of Narayan Deoram Patil on 13.05.1992 and stated that he had 34% burn injuries.
Shivlal
According to the
died as a result of shock due to
Doctors Dipchand
superficial
and
and deep injuries whereas Narayan died due to shock of septicemia with 34% burn injuries.
11. P.W.7-Dr. K.B. Chachare examined at Exh.95 was the Medical Officer at Rural Hospital, Sakri. He stated that he was witness to the dying declarations.
He further stated that he examined P.W.8-Kadji who had burn wound on left palm inner side. It was 1% burn injury examined at 2.05 p.m.on 12.04.1992. The patient gave history of sustaining burn injury while saving others. On that day he examined Sambhaji Narayan Patil, who had 3% burn injuries on both palm inner side. He gave history of receiving burn ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 9 ) injuries while saving others. Dr. Chachare examined Devidas Ananda Patil, (son of accused No.1) on 25.04.1992 at 10.00 a.m. and found healing burn wounds on right palm, inner side, right finger and index finger. The patient gave history of sustaining burns with petrol and kerosene mixture.
12. At Exh.214 there is medical certificate of P.W.1-Yashwant to show that Yashwant had sustained 23% burn injuries mainly on hands, legs and head. Dr. Bhalde Lecturer is examined at Exh.205.
in Government Medical College at Dhule.
He was Assistant
On
12.04.1992 he examined accused No.4-Milind Borse and
found 27% burn injuries. The break up of which was
given as face 9%, both upper limbs 15% and chest &
back 3%. On the person of appellant-Pandit he found
34% burn injuries. The break up of which was given as
face 9%, both upper limbs 18% and chest & back 7%.
The injuries were grievous in nature. In-fact, these
Exh.117 and 118 were admitted by the defence under
Section 294 of the Cr.P.C. and Dr. Bhalde is
examined to show that appellant-Pandit and
P.W.4-Milind were admitted in the Civil Hospital, due
to burn injuries sustained by them.
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13. P.W.18-Head Constable - Walmik Mali proved
spot panchanama which is at Exh.180. Kamalbai Yashwant Borse who is wife of P.W.1-Yashwant (P.W.1) has pointed out spot on 12.04.1992 at about 3.00 p.m. The place of offence was a narrow lane from the house of P.W.1-Yashwant Ananda Patil to the house of accused No.1-Ananda at village Chhadwel. About five feet away from Northern wall of the house of Himmat Baliram Patil, there was small area of 3 feet x 3 feet, which was shown as place of incident. There were burnt pieces the clothes.
of clothes lying scattered.
Half burnt white cap, half There was ash burnt of two white shirts, one vest (Kopari) were attached. Some ash and sample of ordinary earth were taken. At a distance of 18 feet, in a gutter, there was half burnt crude torch. To a piece of wood some cloth was tied and it was used as a torch. About 61 feet from the place of incident, in a gutter, in front of house of accused Ananda, one steel bucket was lying on which there was name of Vishwas Ananda Borse. It is argued that the place of offence was changed. It does not indicate that bricks and mud were brought and unloaded near the house of Ananda. It has come in the evidence of various eye-witnesses that the injured on receiving burn injuries started running here and there. Under ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 11 ) the circumstances, there could not have been spot of incident of size 3 feet x 3 feet only. So, it is said that place of offence was changed or it does not disclose entire truth.
14. P.W.9-G.T. Patil, P.W.10-M.N. Patil and P.W.11-S.G. Khairnar have turned hostile.
P.W.13-Onkar Bedse who is examined at Exh.110 to prove panchanama Exh. 111 has stated that he has signed on panchanama dated 17.04.1992, however, he does not know glass bottles contents of the panchanama. Under the panchanama five smelling of petrol were attached from one Bhatu Deochand Patil, who is not examined in this case.
15. Now we may turn to evidence of dying declarations first and then we will consider oral evidence. P.W.7-Dr. Chachare and P.S.I. Chavan (P.W.16) have proved some of the dying declarations recorded. Since P.W.1-Yashwant is alive, his statement would be a previous statement. When Yashwant was admitted in the Rural Hospital at Sakri, his statement was recorded by P.S.I. in presence of P.W.7-Dr. Chachare and Dr. Chachare has referred to this statement which is later on treated as F.I.R.
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(Exh.80). It bears endorsement of the Doctor that
P.W.1-Yashwant was conscious. It is necessary to
reproduce this F.I.R. as it is the earliest version
regarding the incident. P.W.1-Yashwant stated that on
12.04.1992 at about 7.00 a.m. appellant-Pandit,
Baliram, Vishwas, Milind, Rajendra and Ananda gave
threats to Nanabhau that he should not allow Yashwant
to reside in his house otherwise he would be killed.
At 9 a.m. P.W.1 Yashwant, Nanabhau, Shivlal, Dipchand
and Devidas were going outside the village for
alighted from
bringing bricks in bullock cart. At that time Devidas
the cart and from behind appellant -
Pandit, accused No.4-Milind, Atmaram, accused No.1
Ananda, Vishwas, accused No.3 - Rajendra, Baliram,
accused No.6-Vidhyabai and accused No.2 Panabai came.
At that time their cart was 40 feet away from house of accused No.1. In the hands of appellant-Pandit there was iron bucket which contained mixture of kerosene and petrol. He was having burning torch in his hand.
It is further said that the torch in the hand of Atmaram was not burning. Thereafter, appellant-Pandit threw kerosene on their person holding burning torch in front in such a way that burning kerosene would fall on the prosecution party and thus P.W.1-Yashwant, Shivlal, Nanabhau & Dipchand sustained burn injuries.
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Rear side of bullock cart was also burnt. People
gathered there. Kadji Rupchand(P.W.8) extinguished
fire on the person of P.W.1 -Yashwant. Somebody
brought jeep and they were brought to the Rural
Hospital at Sakri. So, names of as many as 9 persons
gathering with burning torches were disclosed. There
was reference to only one cart and it is said that in
the cart P.W.1-Yashwant, Shivlal, Nanabhau and
Dipchand were all sitting and all were injured.
16.
dying
We
declarations
may compare this dying
of three
declaration
deceased, which
with
were
recorded by P.S.I. Sakri in presence of Dr. Chachare
and proved during evidence of Dr. Chachare. Dr.
Chachare stated that P.S.I. Sakri recorded statements
of Dipchand, Yashwant, Shivlal and Narayan in his
presence. Before recording the statements the P.S.I.
had asked other relatives of the injured to go out of
the ward and thereafter relatives went out. The four
patients were in conscious state. Accordingly, he
made endorsements and their statements were recorded.
It is admitted by Dr. Chachare in cross-examination
that all the patients were in one ward. Distance
between two cots was about 1 and half feet. P.S.I.
recorded statement of P.W.1-Yashwant. There were
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about 20 - 25 persons who had brought patients in the
ward. Police came 15 to 20 minutes after the patients
were brought to the Hospital. Amongst relatives there
were also some ladies. Dr. Chachare admitted in his
cross-examination that on the statements of Dipchand,
Nanabhau and Shivlal, he had not put endorsement at
the beginning of recording of the statement that they
were conscious. But he put only one endorsement on
each statement that they were conscious.
17.
stated
P.S.I.
that
he
Chavan (P.W.16) examined at
went to the Rural Hospital,
Exh.169
as he
received message from the Rural Hospital that four
persons were admitted in the hospital due to burn
injuries. So he made entry in the station diary and
proceeded to the hospital. He first recorded
statement of P.W.1-Yashwant and then of other three
injured. It also appears that statements of deceased
Shivlal and Narayan were recorded by P.S.I. Nizampur
(P.W.19-K.B. Randive) on 13.04.1992. He also
recorded supplementary statement of Yashwant. On that
day Dipchand had expired.
18. The dying declaration of Shivlal Deoram Patil
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which is recorded on 12.04.1992 (Exh.261) is to the
effect that since accused No.1 Ananda was not giving
share to his sons Yashwant and Devidas. There were
Court matters going on. On 12.04.1992 accused No.1-
Ananda had given threats for allowing Yashwant and
Devidas to reside in house of deceased Narayan.
Therefore, on 12.04.1992 in the morning Yashwant and
Devidas asked help and therefore Shivlal and his
brothers had taken bullock carts for transporting
bricks and mud and unloaded the carts near the house
of accused
No.1-Ananda
ig No.1-Ananda.
was exhorting
At
others
that time
to put
accused
the
prosecution witnesses on fire and kill them and
thereafter appellant-Pandit brought a tin of kerosene
and sprinkled kerosene on his person and on persons of P.W.1-Yashwant and his brothers Narayan and Dipchanad.
At that time accused No.4-Milind was holding burning torch and he put the three deceased and Yashwant on fire. Thus as per the dying declaration of Shivlal recorded on 12.04.1992, which is proved at Exh.261, only accused Nos. 1,4 and 5 took part in the incident. On instigation of accused No.1, accused No.5 i.e. appellant-Pandit had sprinkled kerosene and it was appellant No.4-Milind who put above said persons on fire. This description of the incident ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 16 ) does not disclose how accused No.4-Milind and appellant-Pandit sustained injuries. According to this statement a tin of kerosene was brought by Pandit and no bucket was used as stated by other witnesses and as stated in the F.I.R.
19. The dying declaration of Narayan Borse is at Exh.262. It is to the effect that when they were unloading bullock carts, accused No.1 was instigating to put the prosecution witnesses on fire and appellant-Pandit kerosene on ig was holding kerosene tin.
three deceased persons
He threw
and
P.W.1-Yashwant. Accused No.4-Milind who was holding
burning torch put them on fire. So, this story is
consistent with what Shivlal has stated, but said
story does not disclose how cart was partly damaged
and how one of the bullocks sustained burn injury.
20. On 12.04.1992 dying declaration of Dipchand (Exh.263) was recorded. He stated that when they were unloading the carts, appellant-Pandit, accused No.4-Milind, Vishwas and accused No.1 Ananda came there. Appellant-Pandit was holding a can of kerosene and petrol. Burning torch was in the hands of accused No.4-Milind. Appellant-Pandit threw kerosene on their ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 17 ) person and accused No.4-Milind set them on fire.
Thus, the allegations in dying declaration recorded on 12.04.1992 were against three accused persons. The place of offence mentioned in F.I.R. (Exh.80) was on way to brick-kiln where injured were going to purchase bricks whereas as per dying declarations the place of incident was near house of accused No.1-Ananda after building material was unloaded from carts. Moreover, as per these dying declarations, appellant Pandit was having a tin and not a bucket. The learned Additional Sessions Judge ig did not find story given by three deceased in their dying declarations at Exh.261, all the 262 and 263 to be reliable and he acquitted accused No.1-Ananda and accused No.4-Milind.
21. The dying declarations of Shivlal and Narayan were also recorded in the Civil Hospital on 13.04.1992 and they are at Exh.258 and 259. So far as the incident is concerned both stated that their statements were correctly recorded, but they further added that when they unloaded the bricks and mud, and were taking back their bullock carts Shivlal was in his bullock cart. It was last bullock cart trailing others. Behind his bullock cart deceased Dipchand and deceased Narayan were walking. When they came near ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 18 ) the house of Himmat Ananda Patil, appellant-Pandit came running from his house with steel bucket in one hand and burning torch in other hand. Then he threw kerosene mixed with petrol, which was in the steel bucket, on the person of P.W.1-Yashwant and three deceased and set them on fire with torch. As a result, they all were injured. One of the bullocks also got burn injury and therefore the bullock ran away. Shivlal got down from the bullock cart and extinguished fire on his clothes. Sambhaji Narayan Patil on the others.
and Kadji Rupchand Patil also extinguished fire Deceased Narayan in his statement at Exh.259 said that accused No.4-Milind was following appellant-Pandit and some drops of kerosene cum petrol fell on his hand and he sustained burn injury.
According to him Pandit had thrown burning torch on them and thus their clothes were got fired. In other words as per statement of Narayan, appellant-Pandit came running with steel bucket containing kerosene mixed with petrol in one hand and the burning torch in other hand. Then he threw the mixture of kerosene on the witnesses and then threw burning torch. It is further stated that accused No.3 Rajendra was standing with stick behind accused No.4-Milind. Accused No.1-Ananda, accused No.2-Panabai, accused ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 19 ) No.6-Vidhyabai were standing near their house. The fire was extinguished by his son Sambhaji and P.W.8-Kadji. Fire on the person of appellant-Pandit and accused No.4-Milind was extinguished by Subhash.
It is argued before us that earlier case being changed at every stage. There is attempt to involve more accused. Advocate Shri Dhorde also argued that Exh.258 and 259 are long statements. The dying declarations were result of tutoring by the relatives.
It is difficult to reconcile complaint at Exh.80 which involves declarations as many as 9 accused persons at Exh.261 to 263 recorded on 12.04.1992 with dying in which three accused persons are involved with the two dying declarations Exh.258 and 259 recorded on 13.04.2006.
22. In the case of Vikas & Ors. V/s. State of Maharashtra, 2008 AIR SCW 915, 915 the Supreme Court considered law of dying declaration from para 21 onwards and after referring to various authorities in para 36 observed thus:-
"36. The Court, referring to earlier case law, summed up principles governing dying declaration as under:
(i) There is neither rule of law nor of ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 20 ) prudence that dying declaration cannot be acted upon without corroboration.
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration.
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence.
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.
(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail.
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon."::: Downloaded on - 09/06/2013 13:59:58 :::
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. Thus one of the principles is that the Court
should scrutinise the dying declaration carefully and
must ensure that the declaration is not result of
tutoring or prompting or imagination. Where dying
declaration is suspicious, it should not be acted upon without corroborative evidence. Moreover, where prosecution version differs from version given in the dying declaration, the said dying declaration cannot be acted upon.
23. recorded In this case three dying declarations on 12.04.1992 and two dying declarations are are recorded on 13.04.1992. It cannot be said that the dying declarations are not product of tutoring.
Otherwise, there is no reason for change in the story.
The above said dying declarations referred to by us were recorded by Police and as observed in para 37 in the case of Vikas (Supra) where a dying declaration is recorded by a competent Magistrate, it would stand on a much higher footing. In this case there is dying declaration recorded by an Executive Magistrate and it is still different from other dying declarations and the F.I.R. As observed in para 41 of the above quoted case, ultimate test is whether the dying declaration is truthful and voluntary.
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24. Executive Magistrate Suryawanshi has recorded
dying declaration at Exh.171. He is examined as
P.W.15 at Exh.169. He stated that on 12.04.1992 he
received requisition letter from City Police Station,
Dhule for recording dying declarations of Shivlal
Deoram Patil, Dipchand Deoram Patil, Yashwant Ananda
Patil & Narayan Deoram Patil.Therefore, he went to the Civil Hospital, contacted Medical Officer and told him that he was intending to record statements of said persons.
persons
The
ig Medical Officer
were conscious and then this witness recorded stated that those statement at Exh. 171, which is statement of P.W.1-Yashwant. He further stated that he obtained thumb impressions of Shivlal, Dipchand and Narayan on the statement recorded by him. Thus, the Executive Magistrate Suryawanshi recorded statement of P.W.1-Yashwant, as stated by him in para 3 of Exh.169, but then obtained thumb impressions of other three decreased persons, as if it is their joint statement.
The Trial Court did ask question why separate statements of Shivlal, Dipchand, Yashwant and Narayan were not recorded and answer was four persons were admitted in the hospital and they were kept on separate cots, but in same room. Therefore, he ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 23 ) recorded joint statement and obtained thumb impressions. According to him, he enquired with above four persons separately. It is difficult to believe said statement Exh.171 as dying declaration of deceased Shivlal, Dipchand and Narayan. Exh. 171 clearly shows that enquiries were made with Yashwant and his statement was recorded and only thumb impressions of three other injured (who subsequently died) were taken. It is not possible to give status of dying declaration to said statement. At the most it can Yashwant.
be
said that it is previous
Cross-examination shows that it was for the statement of first time the dying declaration was recorded by this witness. The witness could not tell whether Yashwant had less burn injuries than others. He also admitted that the Medical Officer told him that it was Yashwant who was conscious and able to give statement. He specifically admitted that Exh.171 is statement of Yashwant. There is nothing in Exh.171 to indicate that the Magistrate enquired separately with Dipchand, Narayan or Shivlal. So, we will consider this document as only previous statement of P.W.1 Yashwant and not as dying declaration of Dipchand, Shivlal and Narayan.
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25. According to this statement (Exh.171) recorded by Executive Magistrate Suryawanshi, Yashwant and his brothers were asking for partition. Appellant Pandit had agreed in January to give four acres land, share in the movable property and cattle to them. Later on he also said that Yashwant and Devidas should be driven out of the house. He also threatened that he would first take care of brothers and then he would teach lesson to Narayan, Shivlal, Dipchand and Lotan.
It is further stated that in one cart they had taken bricks side.
and mud.
ig The cart of Shivlal was on the Behind that cart Yashwant, Narayan and Dipchand back were walking. In the cart Shivlal was sitting.
Suddenly, Yashwant saw that appellant Pandit was holding a bucket of petrol in one hand and burning torch in another hand. At that time they were about 40 - 45 feet away from the place where bricks were unloaded. So, Yashwant started running, Pandit threw petrol on burning torch and threw that torch on the person of said four persons. He was holding bucket of petrol in his hand. Mouth of one bullock was burnt.
Atmaram was holding torch which was not lighted.
Accused No.4-Milind had iron pipes. Baliram (who was
not accused in the Trial Court) was having 2-3 bricks
pieces. Vishwas (who was also not accused) was
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holding axe. Rajendra Sindhe (accused No.3) was
holding bricks pieces. Accused No.1 Ananda had stick.
P.W.8 Kadji tore his clothes on fire. It is stated
that he (P.W.1-Yashwant) wanted to come to front door.
Appellant Pandit was running fast. He ran up to the water tank. In same state P.W.1-Yashwant also ran after him. Appellant-Pandit was entering houses of some persons, but P.W.1-Yashwant followed him and ultimately when appellant was in the house of Yashwant Ramchandra Salunke, P.W.1-Yashwant asked inmates to bring giving threats.
out appellant-Pandit, but those inmates started Then Yashwant got confused and came to his cart. His son made him to sit in the cart and thereafter he was brought to Dhule. Appellant-Pandit and accused No.4-Milind were already brought in the hospital for treatment. Subhash extinguished fire on the person of appellant-Pandit and put him in the vehicle. So this previous statement of P.W.1-Yashwant recorded on 12.04.1992 at 7.10 p.m. is still different from earlier versions.
26. The learned advocate rightly argued that the case described is inherently improbable. If appellant-Pandit was holding a bucket containing kerosene mixed with petrol in one hand and a burning ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 26 ) torch in other hand, it would have been difficult for him to throw liquid in the bucket on P.W.1-Yashwant and three deceased persons with one hand. If the liquid in the bucket was mixture of kerosene and petrol and then it is difficult to believe that Pandit was holding bucket in one hand and burning torch in another hand. Petrol is inflammable explosive substance and it would have exploded even before the liquid was thrown on the prosecution witnesses. On the other hand, if we are to believe that the the bucket throwing was containing kerosene unless only clothes kerosene, of even each of after the injured were torched, they would not catch fire.
Kerosene itself is not inflammable, explosive material. It is combustible material, which is used as a domestic fuel. In our opinion, this argument has much merit. It is difficult to believe the story of appellant-Pandit holding kerosene mixed with petrol in one hand and burning torch in another and running after the carts which were about 40 to 45 feet away from his house without there being explosion in the middle.
27. Before we draw our conclusions we may refer to evidence of eye witnesses and evidence of witness ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 27 ) Sahebrao Borse (P.W.6). So far as evidence of P.W.6 Sahebrao Borse is concerned, he stated at Exh.89 that since childhood he has been resident of Chhadwel. On the day of incident at about 8.00 a.m. to 8.15 a.m. he had gone to purchase mutton. He was in the market.
Appellant-Pandit came there and he asked if petrol was available as he required it for going outside.
P.W.6-Sahebrao said that he was not having any idea.
Thereafter, appellant again came to him near the mutton shop and said that one Bhatu Deochand Bedse was go having motor cycle and therefore P.W.6-Sahebrao should and bring 4-5 litres petrol giving his reference.
Ordinarily, Sahebrao would have asked appellant-Pandit to go himself to Bhatu Deochand Bedse directly for getting petrol. But according to Sahebrao, he accepted Rs.100/- given by appellant-Pandit and went to the house of Bhatu Deochand Bedse. He told Bhatu Deochand Bedse that Pandit asked him to bring petrol as he urgently wanted to go outside. Thereafter, Bhatu took out petrol from the tank of his motor cycle in five bottles. Bhatu accepted Rs.90/- and returned Rs.10/-. Thereafter, P.W.6-Sahebrao carried five bottles of petrol in a bag and kept same at the floor mill of Raghunath father-in-law of Pandit and he went back to his house. It is further stated that Bhatu ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 28 ) asked him to return bottles and bags immediately. So, PW6-Sahebrao went to the floor mill of Raghunath Bedse. Raghunath told him that accused No.4-Milind, accused No.3-Rajendra had taken away petrol bottles in the bag. Thereafter, P.W.6-Sahebrao went to market area and sat on the Ota of Maruti temple. 15 to 20 minutes thereafter Tillu the son of Raghunath brought empty bottles and bag to him and he returned them to Bhatu Deochand. Thereafter, at about 9.30 a.m. to 10.00 a.m., the incident took place. He saw people running same here and there.
bottles and nylon bag.
He identified Article 10 These bottles were as sent to C.A. and the C.A. detected residuals of kerosene.
C.A. report is at Exh.15. C.A. report shows that steel bucket attached (which is Article) 9 had no kerosene. Same was case with Article 2 - partly burnt white shirt and earth found at the place of incident.
If petrol was purchased from Bhatu, then question arises how in bottles there was detection of kerosene.
We can understand, if kerosene residuals had been found in the bucket, as according to the prosecution it was the very bucket which was used for carrying petrol mixed with kerosene. It is nowhere case that said bottles were used. So, story as a whole described by Sahebrao is not convincing and ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 29 ) trustworthy. It is not clear why Sahebrao should take upon himself to meet Bhatu Deochand and purchase petrol for appellant Pandit, when as per the story name of Pandit was enough to get petrol from Bhatu Deochand. In this case Bhatu Deochand is not examined. Raghunath Bedse is not examined. It is stated that it is accused No. 3 and 4 who took away petrol bottles and bag from Raghunath Bedse and not the appellant. Moreover, petrol tank of motor cycle has capacity of 8-10 litres and generally if petrol is urgently litre needed for a motor cycle, hardly one or petrol would be sufficient for reaching nearest two petrol pump or taluka place. So story of supply of five litres petrol by Bhatu Deochand to accused persons is not reliable. In cross-examination P.W.6-Sahebrao admitted that deceased Shivlal was his uncle; and P.W.1-Yashwant so also Devidas were his friends. He was not having his own motor cycle. He runs a Pan Shop in the market area. It is open from 7=00 - 7=30 a.m. to 12=00 noon and then from 01.30 p.m. to 7.00 p.m. It is also said that appellant Pandit had a Scooter and it is said that whenever appellant-Pandit came to Chhadwel from Pune, he used to bring Scooter. This is also not reliable, because distance between Pune and Sakri is more than 200 ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 30 ) miles. Mutton shop is five feet away from the Pan shop of P.W.6. It is also difficult to believe that he would abandon his own business and would oblige appellant Pandit in procurring petrol. He was confronted with portion marked "A" from his statement dated 14.04.1992 and he denied it. It is stated therein that Sahebrao told appellant Pandit that he had no time and would not go to Bhatu Deochand. It is also not stated that appellant came to Mutton shop twice to meet Sahebrao. So, evidence of P.W.6-Sahebrao find any ig is false and untrustworthy.
corroboration to the evidence of We do not Sahebrao Borse to show that appellant Pandit had procured petrol through him.
28. P.W.1-Yashwant Patil is examined at Exh.79.
He stated that he and Devidas were demanding partition and on that count there were disputes with other members of the family. Yashwant and Devidas were residing separately in the house of uncle Narayan alias Nanabhau as tenants. On the day of incident at about 7.00 a.m. in the morning appellant-Pandit, accused No.4-Milind, accused No.3-Rajendra and accused No.1-Ananda had come to the house of Narayan and gave threats of assaulting him in-case he continued ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 31 ) P.W.1-Yashwant and Devidas to remain tenants in his house. P.W.1-Yashwant said that he was witness to the incident of threats. After sometime Narayan, Dipchand, Shivlal, P.W.8-Kadji, Uttam and Ladku met P.W.1-Yashwant and Devidas and told that they would erect wall in the house of accused No.1-Ananda and they decided among themselves to construct a wall in the house so that Yashwant and Devidas could reside in the house of Ananda and thereafter Narayan, Dipchand, Shivlal, P.W.8-Kadji and uttam took their bullock carts bricks.
towards
igoutskirts of the
Bricks and mud were loaded and they came village to bring to the house of accused No.1 and unloaded bricks and mud near house of accused No.1-Ananda. Since it was a small lane, first cart which entered the land had to leave last and thus bullock cart of Shivlal was last to leave the house of Ananda. It was about 9.00 a.m. When Shivlal was taking back his cart, P.W.1-Yashwant, his uncle Dipchand and Narayan were following said cart on foot. At that time, appellant-Pandit and accused No.4-Milind came from the side of house of Ananda i.e. from back side. Appellant Pandit was holding a bucket in one hand and a burning torch in another hand. Accused No.4-Milind was following appellant-Pandit. It is stated that Pandit was ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 32 ) holding bucket in his right hand up to level of shoulder. We have to consider possibility of holding bucket full of liquid at such level. When attention of Yashwant was drawn to appellant-Pandit, he was throwing liquid on their person. At that time, Yashwant smelled smell of kerosene and petrol. The liquid fell on the person of Dipchand, Narayan, Shivlal and Yashwant. Thereafter, appellant-Pandit moved the burning torch towards them. As a result all of them, so also bullock of the cart got burning injuries.
P.W.8-Kadji, Sambhaji extinguished fire on his person and the injured were taken to the hospital.
29. P.W.1-Yashwant admitted that he lodged complaint Exh.80, but denied that his dying declaration Exh. 171 was recorded by the Executive Magistrate. He said that he did not give such statement and it is false one. In cross-examination para 12, he admitted that Ananda was 82 years of age or it is denied that Ananda had been walking with the help of a stick for previous 10 years. It is also admitted that no civil suit for partition was filed.
In other words, evidence of P.W.1-Yashwant clearly
shows that all prosecution witnesses were taking law
in their hands and wanted to erect wall forcibly in
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the house of accused No.1-Ananda. They had unloaded
mud and bricks brought in the carts for that purpose.
The story that in the morning of the day of incident
accused Nos. 1,3 to 5 came to the house of Narayan
and gave him threats is not finding place in the
original complaint or the dying declarations. In
cross-examination in para 17, the witness was
contradicted with his previous statement that when
original accused Nos.1to6, Atmaram, Vishwas, Baliram
had come from back side. They were proceeding towards
brick-kiln.
that
Witness denied the portion marked "A" to effect from his complaint. He stated in para 18 that Vishwas and Baliram were not present at Chhadwel on the day of incident. It shows that in the complaint-Exh.80, PW1 -Yashwant involved names of innocent persons who were not present at the village on the day of incident. The witness also denied that Nanabhau, Shivlal, Dipchand, Devidas proceeded to bring bricks only in one bullock cart and portion marked "B" from Exh.80 was denied. It shows that as per earliest version in one cart PW1-Yashwant, Narayan, Shivlal, Dipchand were sitting when the inflammable liquid was thrown on them, but P.W.1-Yashwant said portion to that effect is false.
The witness admitted that Article 9 is a stainless
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steel bucket whereas in the F.I.R.it was stated that
an iron bucket was used. It is also not mentioned in
F.I.R.Exh.80 that it contained mixture of petrol and
kerosene. The witness denied that he had seen mixture
of kerosene and petrol in the bucket. Thus portion
marked "D" to that effect is denied from Exh.80. The witness also denied portion marked "E" which is to the effect that Atmaram was also holding torch, but it was not burning. Witness further denied that while proceeding towards brick-kiln, appellant Pandit threw kerosene Portion marked on them by holding a burning torch in front.
"F" to that effect was also denied.
So, P.W.1-Yashwant has completely changed his story and he was contradicted with portions marked "A" to "G" from his complaint Exh.80.
30. Thus P.W.1-Yashwant has not only disowned so called joint statement of him and three deceased persons recorded by the Executive Magistrate at Exh.171, but he also denied material portions marked "A" to "G" from his statement at Exh.80. It is suggested in para 19 to P.W.1-Yashwant that when they were proceeding towards brick kiln, appellant-Pandit and accused No.4-Milind came, and then Gulab s/o.
Shivlal poured mixture of petrol on the person of
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appellant-Pandit and accused No.4-Milind. While they
were offering resistance, in the process, the liquid
fell on P.W.1-Yashwant and deceased Narayan, deceased
Dipchand, deceased Shivlal, Kedar, Appellant-Pandit
and accused No.4-Milind and all of them sustained burn injuries. It is also suggested that in the same process, bullock of the cart also sustained injury.
31. Omission was also brought on record that in F.I.R. at Exh.80, it is not mentioned that at 7.00 a.m. Narayan accused and igNos.
told 1,3 to 5 came to the him not to continue house Yashwant of and Devidas to reside in his house as tenants and gave threats to Narayan. In-fact, in complaint Exh.80, there is no mention that it was decided between Yashwant, Narayan, Devidas, Dipchand, Shivlal and Kedar to construct wall in the house of Ananda, so that Devidas and Yashwant could reside in that house.
Contradiction was also brought on record that in F.I.R. Exh.80, it is not mentioned that the cart driven by Shivlal was trailing other carts and P.W.1
-Yashwant, his uncle Dipchand and Narayan were walking behind the cart and at that time appellant -Pandit and accused No.4-Milind came from the house of their father from behind. So, there are material omissions.
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The case made out before police in F.I.R.Exh.80 or
before the Executive Magistrate in statement Exh.171
are disowned. In para 23, P.W.1 -Yashwant stated that
no one recorded his statement besides P.S.I. Randive,
while he was in the Civil Hospital. He also said that
he never referred to Shivlal as Shivaji. The
executive Magistrate did not record his statement. He
also denied that he used surname Borse. Witness said
that he has not stated portions marked
"B","C","D","E"&"F" from his statement Exh.171. So, in our opinion, P.W.1-Yashwant cannot be believed.
32. P.W.5-Devidas Popat Bedse is examined at Exh.87. He resides at Chhadwel. He stated that at the time of incident, he was standing on the Ota of his house. House of accused No.1 was 70 to 80 feet away from his house. At that time five bullock carts loaded with bricks and mud were brought to the house of Ananda and they were unloaded. According to this witness the bullock carts were brought by Narayan, Dipchand, Shivram, P.W.8-Kadji, Rupchand, Uttam, Ratilal, one Bhil and Subhash. It may be noted that as per evidence of P.W.14-Sarla, her brother Subhash was at his house and was not with the bullock carts at stated by this witness Devidas. It is further stated ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 37 ) that after unloading, the bullock carts were returning back and the last one was of Shivlal. P.W.1-Yashwant, Dipchand and Narayan were walking behind the bullock cart of Shivlal and at that time appellant-Pandit, accused No.4-Milind came from their house. Appellant Pandit was having torch in right hand and bucket in another. Petrol from bucket was poured by appellant Pandit on P.W.1-Yashwant, Dipchand, Narayan and Shivlal. The same petrol fell on the person of appellant-Pandit and accused No.4-Milind. Because of burning Some torch ig all of them sustained petrol also fell on a bullock which was injured.
burn injuries.
He admitted that there are other houses around the
house of accused No.1. It was suggested that he is
friend of Kedar Shivlal and Sambhaji Narayan. He
denied this but admitted that Kedar Shivlal and
Sambhaji Narayan are on visiting terms with him. He
further stated in para 5 that on the day of incident
it was decided amongst the relatives of Yashwant and
Devidas to construct wall in the house of accused No.1 Ananda for residence of Yashwant and Devidas. He also said that relatives who were on the side of Devidas and Yashwant took such decision. According to him there were in all 10-12 persons along with bullock carts. The bullock cart of Shivlal was about 100 feet ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 38 ) behind other bullock carts which were near his house at the time of incident. The bullock cart of Shivlal has just started from the house of accused No.1-Ananda. This is contrary to the version of P.W.1-Yashwant, who stated that they had crossed about 40 feet from the house of Ananda, when the incident took place. So, the bullock cart of Shivlal was near the house of Ananda. According to the witness Devidas the incident had taken place 50 feet away from his house. He did not raise any shouts on seeing the appellant some foul play.
with bucket and torch, though he According to this witness suspected Yashwant, Dipchand and Narayan were proceeding along with the bullock cart of Shivlal. Two were on both sides of the corners of bullock cart and third was behind the cart. It was a steel bucket. It was suggested that he was not telling truth. The defence story suggested to P.W.1-Yashwant was also suggested to this witness and he denied the same. According to this witness the appellant first threw petrol from distance of 4-5 feet then threw the burning torch. He could not tell exactly on whom the burning torch fell, but saw flames spreading. He denied that Subahsh Dipchand was standing on Ota of his house at the time of the incident. He said that Subhash Dipchand was along ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 39 ) with loaded bullock carts. However, the very fact that this witness was aware of earlier decision of P.W.1 Yashwant, deceased persons and others to collect building material and forcibly make construction in the house of Ananda shows that he is not an independent witness. Such knowledge could be only to close friends and confidante.
33. The next witness is P.W.8-Kadji Rupchand Borse. As per evidence of P.W.1-Yashwant and P.W.5-Devidas, accompanying ig Kadji Yashwant, was Devidas, one of Ananda, the persons Shivlal, Dipchand and Narayan. According to P.W.8-Kadji on 11.04.1992 at 7 to 8 p.m. there was meeting of said relatives at the house of Narayan Patil and it was decided in the meeting that they should bring construction material on the next day i.e. 12.04.1992 and construct a wall inside the house of Ananda for the purpose of residence of Yashwant and Devidas. No other witness stated that on earlier day there was meeting and such decision was taken. P.W.1-Yashwant does not support this. According to this witness on next day, they had taken five bullock carts loaded with bricks and mud to the house of Ananda and building material brought in the carts was unloaded ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 40 ) and while returning back, it was cart of Shivlal which was behind other carts. Shivlal himself was driving the cart and P.W.1-Yshwant, Narayan and Dipchand were proceeding behind the carts. At that time appellant-Pandit came holding one steel bucket in his right hand and burning torch was in his left hand.
Behind, appellant Pandit there was accused No.4-Milind and behind Milind, there was accused No.3-Rajendra.
Accused No.3-Rajendra and accused No.4-Milind had sticks in their hands. Appellant-Pandit was running with hand bucket towards in right hand and burning torch in Dipchand, Narayan and Yashwant.
left Thereafter, appellant-Pandit sprinkled kerosene from the bucket towards Dipchand, Narayan, Yashwant, Ananda and others and threw burning torch in the direction of Dipchand and others and thereafter Shivlal, Dipchand, Narayan and Yashwant sustained burn injuries. Witness said that he saw the incident while standing in front of his house. His house is 100 - 150 feet away from the house of accused No.1-Ananda. He specifically admitted that Vishwanath Ananda Patil was not present on the day of incident in the village, still Vishwanath was shown to be present as per F.I.R.
Exh.80 and that shows that there is tendency of
involving innocent persons. Merely because it was
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earliest in time, we cannot say that F.I.R. was free
from emblishments.
34. P.W.8-Kadji has stated that many times
relatives had tried to intervene in the dispute
between PW1-Yashwant, Devidas on one side and accused
No.1 Ananda on the other. Other sons of accused
No.1-Ananda were not ready to give share to Yashwant
and Devidas. 5-6 months prior to the incident
Dipchand, Narayan, Shivlal and P.W.8-Kadji had gone to the to house of Ananda for persuading him to give Yashwant and Devidas as per their demand.
share At that time Ananda in clear terms refused to give their share and said that they should knock the doors of Court and at any cost he would not allow partition. So while appreciating the evidence, it can be noted that P.W.1-Yashwant and P.W.8-Kadji were not law abiding persons. They were ready to take law in their hands and we have to consider whether conviction can be passed on their evidence without independent corroboration.
35. So far as cross-examination of P.W.8-Kadji is concerned, it is stated that there were two heaps in which building material was unloaded. One heap was of ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 42 ) bricks and another was of Mud and they were 1-2 feet away from the door of accused No.1-Ananda. It is argued before us that no such heaps were shown in the spot panchanama. So, in the spot panchanama entire truth was not brought on record. According to this witness, appellant-Pandit ran for a distance of 20-25 feet with bucket and burning torch in his hand before he threw liquid on the injured. This witness further said that in one hand appellant-Pandit was holding of bucket chain and threw liquid on the victims.
appellant-Pandit
Then
ig he said that on throwing
kept the bucket on the ground and by liquid, his left hand he threw the burning torch on the victims.
It is further said that after fire, the victims started running helter - skelter to save their lives.
Yashwant and Shivlal came towards the place where P.W.8-Kadji was standing. Omissions were brought regarding how carts were brought and being taken away after unloading. Omission was brought on record that he did not state before police that accused No.4-Milind was having stick in his hand.
36. Last eye witness P.W.14-Sarla Nandu Patil is examined at Exh.165. She was not believed even by the Trial Court. In para 66 of the judgment the Trial ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 43 ) Court observed that she must not be an eye-witness.
Sarla Patil is married daughter of deceased Dipchand.
She said that at the time of incident she was studying D.Ed. at Javhar, Dist. Thane. She had come to Chhadwel. On 12.04.1992, she was present in kitchen room and was cooking. At that time she noticed that appellant-Pandit was holding a steel bucket in one hand and a burning torch in another. On that day four bullock carts were brought to the house of accused No.1. They were loaded with bricks, stones, sand and mud.
Among those bullock carts one was of her father and others were of Narayan, Shivlal and Ramdas. Those bullock carts were unloaded in front of the house of accused No.1 and three bullock carts were about to return and forth bullock cart was behind those three bullock carts. Dipchand, Nanabhau, Yashwant were going on foot by the side of bullock cart. So it is a story different from one told by other witnesses.
Witness Sarla further stated that as she saw appellant-Pandit coming with steel bucket and torch.
She came on the platform of the house and at that time appellant-Pandit threw kerosene mixed with petrol from the bucket towards bullock cart which was driven by Shivlal. It fell on the person of Shivlal and bullock. As a result there was big fire. She gave ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 44 ) call to her brother Subhash, who came out from their house. So, this shows that Subhash Dipchand was at his house and not with the injured as told by P.W.5-Devidas. It is further stated that thereafter fire was extinguished. In cross-examination it is brought on record that on 12.04.1992 at 9.00 a.m. she came out of the house from kitchen on hearing hue and cry and at that time she saw that her father Dipchand, uncle Shivlal and Narayan and Yashwant were on fire.
So, this admission in para 8 shows that she was not an eye witness.
she did Omission was also brought on record that not state that when she was present in the kitchen room, she noticed appellant No.5 carrying a steel bucket and a burning torch and proceeding towards Eastern side. She was also confronted with portion marked "A" in statement before Police.
Contradiction is regarding this witness stating that it was accused No.1-Ananda who was running after bullock cart holding bucket and burning torch. She was also confronted with portion marked "B" which is to the effect that Subhash was standing on Ota. So, there was no question of calling Subhash. She was further confronted with portion marked "C" from statement before police which shows that Subhash had extinguished fire on the person of appellant-Pandit.
::: Downloaded on - 09/06/2013 13:59:58 :::( 45 ) This is vital admission because Dipchand - one of the deceased was father of the P.W.14-Sarla and Subhash and if they had seen Pandit actually setting fire to Dipchand and others, Subhash would not have helped in extinguishing fire on the person of appellant-Pandit.
37. In this case, the learned advocate for the appellant relied upon case of Lakshmi Singh and others etc. V/s. State of Bihar, AIR 1976 S.C.2263. In that case in para 11 following law is laid down so far as non-explanation ig of injuries accused by the prosecution is concerned.
on the person of "It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstances from which the Court can draw the following inferences:
(1) That the prosecution has supressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witness who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 46 ) inimical witnesses or where the defence gives a version which competes secution one. ....... .............................................. We must hasten to add that as held by this Court in the State of Gujarat V/s. Bai Fatima, Criminal Appeal No.67 of 1971 decided on March 19,1975 = (Reported in AIR 1975 SC 1478) there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit worthy, that it far outweights the effect of the omission on the part of the prosecution to explain the injuries."
38. It is argued before us that in this case the prosecution witnesses particularly eye witnesses, so also three deceased in their dying declarations nowhere explained injuries on appellant-Pandit and accused No.4-Milind. They were having serious injuries as can be seen from evidence of Dr. Bhalde at Exh.205. It is argued that inference may be drawn that the prosecution has supressed genesis and origin of occurrence and thus not presented true version. It is also said that this probabalises defence story suggested to P.W.1-Yashwant and P.W.5-Devidas. The witnesses examined in this case are all interested witnesses. They were inimical to the appellant and other accused persons. The story is inherently improbable. It is difficult to visualise a person ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 47 ) holding a bucket containing kerosene mixed with petrol in one hand and a burning torch in other and running for a distance of 30 - 40 feet and as many as as six witnesses getting injured and the spot of incident being only of 3 feet x 3 feet, when it is admitted that after sustaining burns the injured started running here and there. It is also pointed out that star witness P.W.1-Yashwant who was injured, in his first F.I.R. Exh.80 has falsely roped in nine persons as accused. On the basis of statements of witnesses, Ultimately, the charge-sheet came to be filed against six persons.
some evidence was found against only appellant-Pandit. It is argued before this Court that evidence is far from satisfactory. The truth and falsehood is so mixed up that unless Court constructs a new case it is difficult to explain all circumstances.
39. We may refer to following portion from the case of Lakshmi Singh (Supra) :-
"16. .................................... Where all the witnesses enter into a conspiracy to implicate five innocent persons in a murder case, then the backbone of the prosecution is broken, and it would be difficult for the Court to rely on such evidence to convict a single accused, particularly when the prosecution does not ::: Downloaded on - 09/06/2013 13:59:58 ::: ( 48 ) give any explanation for the grievous and other serious injuries on the person of Dasrath Singh. This is a case where it is not possible to disengage the truth from falsehood to sift the grain from the chaff. The truth and falsehood are so inextricably mixed together that it is difficult to separate them. Indeed if one tries to do so, it will amount to reconstructing a new case for the prosecution which cannot be done in a criminal case."
40. In this case also same situation has arisen.
It is unfortunate that as many as three persons have died. Definitely it is a case where explosive inflammable liquid was used which ultimately caused burn injuries to several persons and caused death of three of them. But after giving anxious consideration to all circumstances, in our opinion, it is difficult to uphold conviction of appellant-Pandit. Witnesses examined are not trustworthy. They changed their version from time to time. There are material improvements, omissions, contradictions. The dying declarations are also not free from doubt. The dying declarations at Exhs. 261 to 263 as we have discussed earlier are not consistent with the F.I.R. The possibility of they being result of tutoring cannot be ruled out. It may be noted that as per dying declaration at Exhs.261 to 263 recorded on 12.04.1992, at the exhortation of accused No.1-Ananda.
Appellant-Pandit had thrown kerosene on the person of
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injured, whereas accused No.4-Milind who was holding
torch set the injured on fire. This story is not
believed by the Trial Court and it is not supported by the prosecution witnesses. Similarly, we are of the opinion that subsequent dying declarations at Exh.258 and 259 must also be result of tutoring.
41. Now it is well settled that where parties come to Court with falsehood or half truth, though Court has duty to sift truth from falsehood, sometime truth and becomes falsehood ig are impossible so ingenoniously to separate mixed them. In that it such situation Court is left with no option but to discard such evidence and give benefit of doubt to the accused. In the case of Jamuna Chaudhari and others V/s. State of Bihar, AIR 1974 S.C.1822, following observations are made:-
"12. As neither the prosecution nor the defence have, in the case before us, come out with the whole and unvarnished truth, so as to enable the Court to judge where the rights and wrongs of the whole incident or set of incidents lay or how one or more incidents took place in which so many persons, including Laldhari and Ramanandan, were injured, Courts can only try to guess or conjecture to decipher the truth if possible. This may be done, within limits to determine whether any reasonable doubt emerges on any point under consideration from proved facts and circumstances of the case."::: Downloaded on - 09/06/2013 13:59:58 :::
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42. In this case each piece/item of evidence right from the F.I.R. (Exh.80) is inconsistent with other evidence. It appears that there are improvements at every stage and this can happen, not merely because of zeal to include as many persons as accused as possible, but when there is desire to conceal some material part of the truth which is inconvenient.
Otherwise, there is no explanation why there should be so much variance in the F.I.R., dying declarations and depositions spot of incident;
on record; why there should be change of and in role attributed to various accused persons and in other details.In our opinion it is not safe to base conviction on evidence on record.
43. In the result though it is unfortunate that three persons have lost their lives and one of the witnesses have sustained burn injury as a result of the incident, in an attempt to involve even innocent persons, truth is mixed with falsehood so inextricably, that now it has become difficult for us to disengage truth from falsehood. In our considered view, there is no alternate but to give benefit of doubt to the appellant. In the result, we pass following order:-::: Downloaded on - 09/06/2013 13:59:58 :::
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i. Criminal Appeal No.553 of 2006 is allowed and
conviction and sentence of the appellant for offence
punishable under Section 302 and 307, as recorded by
the Ist Ad-hoc Additional Sessions Judge, Dhule by
judgment dated 24.07.2006, in Sessions Case No. 61 of
1992 is hereby quashed and set aside and the appellant is acquitted of the offences 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.
ii. Criminal Appeal No.763 of 2006 is dismissed.
[P.R. BORKAR,J.] [P.V. HARDAS,J.] snk/2008/OCT08/crap553.06 ::: Downloaded on - 09/06/2013 13:59:58 :::