ORDER
V.K. Barde, J.
1. The appellants are convicted for offence punishable under section 302 read with section 34 of Indian Penal Code, in Sessions Case No. 41/1992, by the learned Sessions Judge, Jalna.
2. The appellants have contended that the learned Sessions Judge has not properly appreciated oral and documentary evidence on record. The learned Sessions Judge has relied on oral evidence which is not at all believable. The learned Sessions Judge ought to have taken into consideration the circumstance that the Sarpanch of the village is the son-in-law of the Police Patil of the village and the accused had contested elections against the Sarpanch and because of this, both of them were against the accused and their evidence cannot be relied upon. The learned Sessions Judge also has erred in believing the evidence of the child witness. There was delay in filing the first information report and it was not at all explained by the prosecution. So taking into consideration these grounds, the appeal be allowed and the appellants be acquitted.
3. Heard Mr. N.T. Bhagat, learned Counsel for the appellants, and Mr. K.M. Babhulgaonkar, learned Additional Public Prosecutor, for the respondent – State.
4. P.S.I. Chandramore of Police Station ,Hasnabad (District : Jalna), filed the F.I.R. on 28-4-1991. He informed that Accidental Death No. 7/91 was registered at the Police Station and he proceeded for enquiry to village Thigalkheda on 27-4-1991. He recorded statements of nearly ten witnesses and then he came to know that it was not the case of accidental death but it was murder. He has further reported that deceased Mamtabai w/o. Sitaram Gaike was first residing with Sitaram Gaike at Dudhana-Kalegaon. Her mother is from village Rajur. About two years prior to 1991, she had come to reside at Rajur with her children and husband. However, she and her husband could not pull on together and, therefore, her husband returned to Dudhana-Kalegaon. Mamtabai started to reside at Rajur with her children but separately from her mother. She developed illicit relations with the accused Pandit and Vitthal. Ac-
cused Pandit then took Mamtabai and her children to village Thigalkhcda, his native place. There Mamtabai and her children started to reside in the house of accused Vitthal. Both the accused were staying with them.
5. He further reported that on 21-4-1991, it was Sunday. The accused went to the house of Mamtabai at night. Both were drunk and they started to drink in her house. She objected. Then accused Vitthal poured kerosene on her person and accused Pandit set her ablaze with match-stick. Then both of them ran away. On the next day, accused Vitthal gave threats to Mamtabai and her son Pralhad, that they should tell that Mamtabai received injuries because burning oil lamp fell on her person when she was sleeping. Mamtabai was removed to Jalna for medical treatment. She died on 25-4-1991. So, it is alleged that the two accused in furtherance of their common intention committed her murder.
6. After registration of Crime No. 116/91, the P.S.I. took up further investigation. He then submitted the charge sheet before Judicial Magistrate (F.C.) Bhokardan. The case was committed to the Court of Sessions at Jalna.
7. The learned Sessions Judge framed charge against the accused for offence punishable under section 302 read with section 34 of Indian Penal Code. The accused pleaded not guilty. Their defence is that they are falsely implicated in this case because they were on inimical terms with the Sarpanch and Police Patil of the village.
8. The prosecution is mainly relying on the evidence of Pralhad, 10 years old son of Mamtabai, and on the evidence of Annasaheb Bhalerao, Sarpanch of village Thigalkheda; Baburao Naswale, neighbour of Mamtabai; Atmaram Dhawle, Police Patil of village Thigalkheda; and Rashid Khan, Kotwal of village Thigalkheda.
9. Before going to the evidence of the child witness, Pralhad, we will first consider the evidence of other witnesses named above. The deposition of Annasaheb Bhalerao (P.W. 1) is at Exhibit 14. He has stated that on 21-4-1991, it was Sunday. He was sleeping at his house. At about 11.30 p.m., he heard commotion from the house of accused No. 2 which is situated in Sonar lane. He immediately went there. On the way, Police Patil Atmaram, Daulat and others met him. On going to the house of accused No. 2, he saw that Mamtabai who had received burn injuries was lying in the courtyard of the house of accused No. 2. Her son, who was 5-7 years of age and her daughter aged 5 years were near her.
All the clothes from her person were burnt. But she was alive. The Police Patil made enquiry with her as to what had happened and then she told that Pandit and Vitthal poured kerosene on her person and set her on fire. She requested that she be moved to hospital.
10. Annasaheb (P.W.1) has further stated that Mamtabai had come to their village about 15 days back and she was residing in the house of accused No. 2. He has stated that he sent village Kotwal to Rajur which is about 7-8 Kms. from village Thigalkheda. Village Kotwal returned after some time and told that the dispensary at Rajur was closed and there was nobody at Police Chowki, Rajur. So, on the next morning, at about 7 to 7.30 a.m. Mamtabai was taken to Rajur in a bullock-cart. From Rajur, she was taken to Civil Hospital at Jalna. But she died on 25-4-1991 due to burn injuries.
11. Baburao Naswale (RW. 2), in his deposition at Exhibit 15 has stated that the house of accused No. 2 is adjacent to his house on the northern side. Since about 15 days prior to date of incident, accused No. 2 had come to reside in that house with the woman Mamtabai. A boy and girl were also residing with them. He has further stated that the incident took place on Sunday at about midnight. When he was asleep, he heard crying of a child and knocking on the door of a nearby house. He woke up and then saw that there were flames in the courtyard of the house of accused No. 2. He was sitting on the bed and Mamtabai was lying in a gutter in front
of his house. The fire was extinguished. He then raised hue and cry. Kotwals, Police Patil, Sarpanch and others gathered there. He himself did not go near Mamtabai. But he heard Mamtabai saying that the accused No. 1 set her on fire by pouring kerosene on her person.
12. Atmaram Dhawle is the prosecution witness No. 3. He is Police Patil of village Thigalkheda. In his deposition at Exhibit 16, he has stated that his house is at a distance of about 10-12 feet from the house of accused No. 2. The courtyard of house of accused No.2 is on the back side of his house. At the time of incident, Mamtabai was residing with her children in the house of accused No. 2. She had come there to reside about 15 days back. On 21-4-1991 at about midnight, he heard shouts from Sonar lane. He woke up and he ran towards the sight of commotion. People had gathered at that place. He saw that Mamtabai was lying near the gutter in the courtyard of accused No. 2. She had received burn injuries, her clothes were burnt and she was naked. She was wailing to save her. He asked her as to what has happened and she told that accused No. 2 poured kerosene on her person and accused No. 1 set her on fire with a lighted match-stick. He has stated that he then asked two village Kotwals to stay with Mamtabai and he himself went to Rajur by tractor to give information to the Police at Police Chowki. There was nobody at the Police Chowki. So, he returned. On the next morning, he informed the Police orally. For that, he had gone to the Police Chowki at Rajur. Mamtabai was also taken to dispensary at Rajur by bullock-cart.
13. Rashid Khan (P.W. 4) is Kotwal of village Thigalkheda. His deposition is at Exhibit 17. He has stated that on the night of incidental about 12 midnight or 1 a.m., he heard commotion from Sonar lane. He then went there. Others also had gathered there. Mamtabai was lying in a gutter in the house of accused No. 2 and she had sustained burn injuries. She was saying that she be removed to hospital. The Police Patil and Sarpanch had come there. The Police Patil asked Mamtabai as to what had happened and she told that accused No. 2 poured kerosene on her person and accused No. 1 set her on fire with lighted match-stick. He has slated that the Police Patil asked him and other Kotwal Shabbir Khan to remain with Mamtabai at the place.
14. Rashid Khan (P.W. 4) has further stated that on the following day, Mamtabai was taken to hospital a! Rajur by bullock-cart. Narayan, husband of sister of Mamtabai, was driving the bullock cart. He himself, Mamtabai and other Kotwal were sitting in the cart. When the bullock cart was near a brook, accused No.2 appeared and then he told Mamtabai that if she desired to save accused No. 1, she should say that an oil lamp fell on her person and, therefore, she received the burn injuries. Accused No. 2 then left immediately.
15. This witness has further stated that during the night when they were attending Mamtabai at the village, he and other Kotwal asked Mamtabai, as to what had happened and she told that accused Nos. 1 and 2 had come to her house, they had consumed alcohol and then accused No. 2 poured kerosene on her person and accused No. 1 set her on fire with lighted match-stick.
16. The inquest panchanama is at Exhibit 12 and it shows that there were burn injuries on entire body of Mamtabai. The post mortem examination report is at Exhibit 13 and it shows that Mamtabai had received 98% burn injuries and the Doctor has given opinion regarding cause of death as septicemic shock due to 98% burn injuries. So, this evidence fully corroborates the evidence of the four prosecution witnesses regarding the fact that Mamtabai had received severe burn injuries and she died due to the burn injuries.
17. Pralhad, son of Mamtabai, is prosecution witness No. 6 and his deposition is at Exhibit 21. It is in question and answer form. The learned Sessions Judge has observed that Pralhad appeared to be of 11 years of age. After ascertaining whether Pralhad was understanding the sanctity of oath, oath was administered to Pralhad.
From the deposition of Pralhad, the prosecution has brought on record that Pralhad and Vandana, his younger sister, were residing in the house of accused No. 2 since about 15 days prior to the incident. Pralhad has stated that on the evening of the incident, his mother cooked food. He and his sister took food. Both of them went to bed. His mother had not taken food.
18. Pralhad has futher stated that at about 11 p.m. to 12 midnight, he heard shouts of quarrel between his mother and the accused Pandit and Vitthal. He woke up. He has stated that Vitthal then poured kerosene from the bottle, on the person of his mother, and Pandit applied lighted match-stick to his mother. Pandit and Vitthal both had caught his mother till flames had flared up. His mother ran out from the house and rolled herself in mud in the courtyard. He has stated that some persons had gathered there. The prosecution witnesses were shown to him and he identified Narayan, Rashid Khan, Babu Naswale and Shabbir as the persons who were amongst those who had gathered there but failed to recognize Annasaheb, Atmaram and others.
19. Pralhad has further stated that his mother was then removed to hospital at Rajur, on the next day and then she was taken to Jalna. He identified both the accused as the persons who set his mother on fire. He also told that Narayan, husband of his mother’s sister, had taken by bullock-cart, his mother to Rajur.
20. The last prosecution witness is P.S.I. Chandramore who held the enquiry regarding accidental death and then lodged the F.I.R. which is at Exhibit 24 and completed the investigation.
21. When this matter came up for hearing before this Court, at the request of the learned Counsel for the appellants, the matter was remanded to the Court of Sessions at Jalna, for recording evidence of defence witnesses. It was brought on record through the deposition of P.S.I. Chandrarnore, that the dying declaration of Mamtabai was recorded at Jalna. So, the defence has examined Dr. Mahajan who was Resident Medical Officer in Civil Hospital. Jalna, and Head Constable, Nawazkhan Pathan who had recorded the dying declaration. We will come to this evidence at latter stage.
22. The learned Additional Public Prosecutor has argued that Pralhad may be a child witness. But he has narrated the entire story properly. He has stood the lengthy cross examination and there is nothing brought on record through his cross-examination to disbelieve him. He was naturally present in the house when the incident took place. Till the date of incident, he had no bias against either of the accused. So, he can be believed. Furthermore, there is sufficient corroboration from other four prosecution witnesses who state that Mamtabai told them that the two accused set her on fire. It is, therefore, argued that the evidence is sufficient to convict the accused.
23. It is true that the presence of Pralhad at the place of incident was very much natural he being son of deceased Mamtabai. He had the first hand information about how Mamtabai caught fire. But it also cannot be forgotten that his statement was not recorded by the Investigating Officer, Chandrarnore, immediately after the incident. His statement was recorded on 28-4-1991, nearly 7 days after the incident. No proper explanation is coming forward from the prosecution as to why such long time was taken to record his statement.
24. The incident took place on 21-4-1991. The deposition of Pralhad was recorded on 23-6-1993 that means, 2 years after the incident. Pralhad was a boy of 7 years age when the incident took place. During the period after the incident till recording of deposition, he was staying with his father, as per his own deposition. His evidence also indicates that his father had taken some amount from accused Pandit for purchasing land and it was suggested to him that as his father was unable to repay the amount, his father taught him, what statement he should make, and therefore, he had given such statement. There may be some financial transactions between accused and the father of Pralhad i.e. Sitaram. There may be some disputes between Sitaram and the accused because Mamtabai had left him and she was staying at Thigalkheda in the house of accused No. 2. In such circumstances, the possibility of tutoring the witness Pralhad cannot be ruled out. Unless there is proper and sufficient corroboration from other evidence on record the conviction cannot be based merely on deposition of Pralhad the child witness.
25. All the first four witnesses state that on 21-4-1991, when they saw Mamtabai lying in front of her house in burnt condition, she told that the accused set her on fire. The Sarpanch, Police Patil and Kotwals were present there. But there is nothing on record that any report was made by any of them, either at Police Chowki, Rajur, or at Police Station, Hasnabad. The prosecution witness, Atmaram, Police Patil, has stated in the deposition that, on the next day, he made oral report at Police Chowki at Rajur. But the prosecution has not brought on record any document indicating that whatever oral report the Police Patil had made at Police Chowki was reduced in writing. It is very difficult to believe that if any report, that the two persons set on fire one woman, had been made by the Police Patil at the Police Chowki there would not be any entry to that effect in the record at Police Chowki. It is obvious that though the Police Patil was duty bound to make report, he had not given any report at the Police Station regarding Mamtabai had caught fire, and further, that Mamtabai had stated that the two accused had set her on fire.
26. In ordinary course, the natural reaction of Police Patil, Sarpanch and Kotwal would have been to make a report to the Police about the incident. But the Sarpanch and Kotwal did not make any such report. The prosecution has no explanation as to why these two witnesses failed to make any report. From the evidence of these witnesses, it is very clear that they had gone to Rajur on the next morning when Mamtabai was taken to the hospital at Rajur. Then what prevented them from making any report at Police Chowki at Rajur.
27. Mamtabai was given treatment in the hospital at Rajur. It was a Government Hospital. But there is nothing on record, that the Doctor from that hospital sent any report to the Police Chowki at Rajur or to Police Station at Hasnabad, that a woman in burnt condition was brought in the hospital and her position was critical. So, on this aspect, the prosecution case is silent.
28. Pralhad, in his cross-examination, has stated that the Police from Rajur had come to the dispensary. The Police made enquiry with him as well as with his mother and grandmother, and he has further stated, that he told the Police what had happened. Then how is it that nothing was recorded by the Police of Police Chowki, Rajur, on 22-4-1991. Can it be said that the Police altogether ignored the information which was given to them, or that, no information was given to the Police. If the prosecution had examined any Police Officer who was then attached at Police Chowki, Rajur, some information would have been there on record to find out what had happened. However, the prosecution has avoided to examine anybody attached to the Police Chowki at Rajur. The prosecution has also not examined the Doctor who gave treatment to Mamtabai in the dispensary at Rajur. In such circumstances, belated statements of four witnesses, namely, prosecution witness Nos. 1 to 4 that Mamtabai told them that the two accused set her on fire, cannot be believed.
29. Deposition of P.S.I. Chandramore indicates that a report was received at Police Station, Hasnabad, from Kadim Police Station, Jalna. The report is dated 25-4-1991. It was received at the Police Station on 26-4-1991 and in that report, it was communicated that Mamtabai had died in the hospital due to burn injuries on 25-4-1991. So, Accidental Death No. 7/91 was registered on 26-4-1991 itself. But till 27-4-1991, no
action was taken by the P.S.I. of Police Station, Hasnabad. No proper explanation is corning forward from P.S.I. Chandramore as to why immediate action was not taken at least on 26-4-1991 when the accidental death was registered.
30. In the F.I.R., P.S.I. Chandramore has stated that he recorded statements of ten witnesses including Pralhad and Gayabai Tukaram Pungale, mother of Mamtabai, and then he came to the conclusion that it was case of murder. But in his cross-examination, he has made all confusion. He has stated that he recorded statement of Pralhad before registration of the crime and statement of Gayabai, mother of Mamtabai after registration of the crime. He stated that Gayabai was present when he recorded statement of Pralhad. But then he took sommersault and stated that he recorded statement of Pralhad after registration of the crime. How is it that P.S.I. is not able to state in what sequence he recorded statements of the prosecution witnesses.
31. The learned Counsel for the appellants has pointed out that the F.I.R. Exhibit 24 indicates that it was written on 28-4-1991. The crime was registered on 28-4-1991. But it was signed by P.S.I. Chandramore on 29-4-1991. He has put specific date below his signature on the F.I.R. Furthermore, he pointed out that the copy of the F.I.R. was sent to Judicial Magistrate (F.C.). Bhokardan on 16-5-1991, nearly 18 days after registration of the crime. The prosecution is not able to explain, as to how F.I.R. which was registered on 28-4-1991 was signed by the P.S.I. on 29-4-1991 who filed the F.I.R. The prosecution has not explained why copy of F.I.R. was not immediately sent to concerned Magistrate. The delay in sending the F.I.R. to the Court of Judicial Magistrate (F.C.). Bhokardan is really surprising. If deposition of P.S.I. Chandramore is taken into consideration as a whole, so also, the F.I.R. and the delay in sending the copy of the F.I.R. to the Court of Judicial Magistrate (FC.). Bhokardan, the whole prosecution case becomes doubtful.
32. The learned Counsel for the appellants has relied upon ruling of the Supreme Court in the case of Ishwar Singh v. State of Uttar Pradesh, . In the said matter, the F.I.R. was sent to the Court of Judicial Magistrate (First Class) by causing delay of two days. Their Lordships have observed :
“Section 157 of the Code of Criminal Procedure, 1898 as well as of 1973 both require the first information report to be sent “forthwith” to the Magistrate competent to take cognizance of the offence. No explanation is offered for this extraordinary delay in sending the report to the Magistrate. This is a circumstance which provides a legitimate basis for suspecting as Mr. Anthony suggested, that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence.”
33. The circumstances mentioned above, in the present case, create more doubt about the prosecution case. Not only that the F.I.R. was sent 15 days after the registration of the crime, but that it was signed on the next day of registering the crime. When the prosecution case is full of so many doubtful circumstances which require proper and sufficient explanation the evidence of the child witness cannot be believed merely because in ordinary and natural course, he would have been at the place of incident.
34. On considering this evidence of prosecution it would be better to refer to the defence evidence. Head Constable Nawazkhan, in his deposition at Exhibit 43, has stated that he was asked by Dr. Mahajan of Civil Hospital to record dying declaration of Mamtabai. He then recorded dying declaration of Mamatabai, in the language of Mamtabai. He asked her the details as to how the incident happened. Then he obtained
thumb impression of Mamtabai and put his signature below the statement. Thereafter, he obtained endorsement of the Doctor. The dying declaration is at Exhibit 32.
35. The other defence witness Dr. Mahajan, in his deposition at Exhibit 39, he has stated that the Head Constable had recorded the dying declaration, he brought it to him and then he put endorsement on the dying declaration and signed it. The endorsement on the dying declaration reads that the patient was conscious.
36. The learned Additional Public Prosecutor has pointed out that the cross-examination of the Doctor and the Head Constable indicates that the Head Constable had not first obtained the certificate from the Doctor, that the patient was conscious and was in a position to give statement. The Doctor states that he made the endorsement and signed it in his own chamber. While the Head Constable says that the Doctor made the endorsement and signed in the ward. These contradictions create doubt about how the statement was recorded. The cross-examination of Head Constable indicates that he must have ascertained some facts from other persons and then he put questions to the lady and sought answers from her. The witness has stated that he asked the leading questions to the patient and she gave answers, yes or no, and then he recorded the statement. So, obviously this statement is not in the words of Mamtabai and it cannot be relied upon as dying declaration.
37. No doubt, the evidence of these two witnesses does indicate that the statement of Mamtabai Exhibit 32 was recorded in such a manner and in such a fashion that it cannot be called as dying declaration. It may even be doubted whether it was the statement given by Mamtabai. However, the fact remains that the prosecution had this document in the possession when the accidental death was registered and, in this document, it is mentioned that Mamtabai was sleeping at night in her house. There was burning oil lamp on the wooden plank above her bed. That burning lamp fell on her body and she caught fire.
38. The defence has relied on this document to contend that Mamtabai caught fire due to accident. However, besides the defects regarding the statements which are pointed out above, there are certain matters stated in the statement itself which create doubt, as to whether it was statement given by Mamtabai. It is mentioned in the statement that Mamtabai stated that her husband had gone in the field of Jawar crop for night watch. It is being indicated that she was staying with her husband and children. However, no prosecution witness is stating that husband of Mamtabai was staying at village Thigalkheda along with Mamtabai. It clearly appears that this statement is prepared by the Head Constable at the instance of somebody.
39. The most regretful circumstance is that the Doctor has made endorsement on the statement of Mamtabai, Exhibit 32, and has signed it, but the deposition of the Doctor shows that he had not seen the patient before the statement was recorded. He had not given any treatment to the patient. He was not knowing the nature of the burn injuries received by the patient. Even then, he certified that the patient was conscious. We hope that the concerned authorities will take proper action against the Doctor who has acted in such irresponsible manner. Head Constable Nawazkhan has already retired from service. But his deposition also indicates that he had recorded that statement under the influence of somebody. The defence cannot take advantage of statement Exhibit 32 and on that basis, it cannot be said that benefit of doubt can be given to the appellants.
40. Reverting back to the evidence of first four prosecution witnesses, we would like to point out that Annasaheb (P.W. 1) has stated that he heard shouts at about 11.30 p.m. While Baburao Naswale (P.W. 2) and Atmaram Dhawle (P.W. 3) have stated
that they heard shouts at about 12 midnight and Rashid Khan P.W. 4) has stated that he heard shouts in between midnight to 1 a.m. The prosecution has alleged that the incident took place between 1 a.m. to 1.30 a.m. It cannot be said that the Sarpanch and the Police Patil are ignorant persons not to understand the watch.
41. The behaviour of Baburao (P.W. 2) is strange. He states that he saw Mamtabai burning in the courtyard just adjacent to his house. But he saw it from the bed and he did not leave the bed. Many other persons had gathered there. However, the other witnesses state that Baburao had also come near Mamtabai. Why there should be such contradiction in the statements of the witnesses. The other witnesses state that Mamtabai told that both the accused set her on fire. But Baburao states that Mamtabai told that accused No. 1 Pandit poured kerosene on her person and set her on fire. So here again, the witness is not corroborating the statements of other witnesses regarding what Mamtabai stated. In ordinary course, this would have been ignored as minor discrepancy in the evidence. But if the evidence of these four witnesses is read together, definitely it does not create any confidence and, therefore, we hold that the prosecution has failed to prove the case against the accused beyond reasonable doubt. The accused, therefore, are entitled to acquittal.
42. Hence, the appeal is allowed. The order of conviction and sentence passed against both the appellants, in Sessions Case No. 41/1992, for offence punishable under section 302 read with section 34 of Indian Penal Code, on 28th July, 1993, by the Sessions Judge, Jalna, is set aside. The appellants are acquitted for offence punishable under section 302 read with section 34 of Indian Penal Code. They be released from jail forthwith, if not required in any other case.
43. Appeal allowed.