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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.”
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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 aconspiracy 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,
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( 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 falsehoodto sift the grain from the chaff. The truth
and falsehood are so inextricably mixed
together that it is difficult to separatethem. 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, Courtscan 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.”
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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:-
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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
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