Bombay High Court High Court

Age 43 Years vs The State Of Maharashtra on 18 October, 2008

Bombay High Court
Age 43 Years vs The State Of Maharashtra on 18 October, 2008
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.

::: Downloaded on – 09/06/2013 13:59:57 :::

( 2 )

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.

::: Downloaded on – 09/06/2013 13:59:58 :::

                                           (     6    )




     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.

::: Downloaded on – 09/06/2013 13:59:58 :::

                                         (    10   )




     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.

::: Downloaded on – 09/06/2013 13:59:58 :::

                                        (    12   )




     (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.

::: Downloaded on – 09/06/2013 13:59:58 :::

                                             (    13     )




     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




                                                              ::: Downloaded on - 09/06/2013 13:59:58 :::
                                           (    14   )




     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




                                                        ::: Downloaded on - 09/06/2013 13:59:58 :::
                                                  (    15     )




     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 :::

                                           (    21   )




     .            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.

::: Downloaded on – 09/06/2013 13:59:58 :::

                                                    (    22     )




     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.

::: Downloaded on – 09/06/2013 13:59:58 :::

( 24 )

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




                                                                 ::: Downloaded on - 09/06/2013 13:59:58 :::
                                             (   25    )




     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




                                                            ::: Downloaded on - 09/06/2013 13:59:58 :::
                                           (     33    )




     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




                                                            ::: Downloaded on - 09/06/2013 13:59:58 :::
                                        (     34    )




     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




                                                       ::: Downloaded on - 09/06/2013 13:59:58 :::
                                               (    35   )




     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.

::: Downloaded on – 09/06/2013 13:59:58 :::

                                        (   36    )




     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




                                                          ::: Downloaded on - 09/06/2013 13:59:58 :::
                                           (    41   )




     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




                                                             ::: Downloaded on - 09/06/2013 13:59:58 :::
                                      (    49    )




     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 :::

( 50 )

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 :::

                                     (    51   )




     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 :::