{"id":17448,"date":"2008-10-18T00:00:00","date_gmt":"2008-10-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/age-43-years-vs-the-state-of-maharashtra-on-18-october-2008"},"modified":"2016-08-21T11:11:06","modified_gmt":"2016-08-21T05:41:06","slug":"age-43-years-vs-the-state-of-maharashtra-on-18-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/age-43-years-vs-the-state-of-maharashtra-on-18-october-2008","title":{"rendered":"Age 43 Years vs The State Of Maharashtra on 18 October, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
Age 43 Years vs The State Of Maharashtra on 18 October, 2008<\/div>\n
Bench: P.V. Hardas, P. R. Borkar<\/div>\n
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                      BENCH AT AURANGABAD.\n\n\n                 CRIMINAL APPEAL NO.553 OF 2006\n                              WITH\n\n\n\n\n                                                                 \n                 CRIMINAL APPEAL NO.763 OF 2006\n\n                           * * * * *\n\n\n\n\n                                         \n                 CRIMINAL APPEAL NO.553 OF 2006\n\n     Pandit s\/o. Ananda Patil (Borse)\n\n\n\n\n                                        \n     Age 43 years, Occ. Labour work,\n     resident of Chhadwel (Korde),\n     Tal. Sakri, Dist. Dhule.                    ]..Appellant\n\n\n                                VERSUS\n\n\n\n\n                                \n                  \n     The State of Maharashtra                    ]..Respondent\n\n\n     Shri R.N. Dhorde h\/f. Shri B.P. Suryawanshi, Advocate\n                 \n     for the appellant.\n     Shri K.G. Patil, A.P.P. for the respondent\/State.\n\n                                WITH\n\n                 CRIMINAL APPEAL NO.763 OF 2006\n      \n\n\n     The State of Maharashtra                    ]..Appellant\n   \n\n\n\n                            VERSUS\n\n     Pandit s\/o. Ananda Patil (Borse)\n\n\n\n\n\n     Age 43 years, Occ. Service,\n     resident of Chhadvel (Korde),\n     Tal. Sakri, Dist. Dhule.                    ]..Respondent\n\n\n     Shri K.G. Patil, A.P.P. for the appellant\/State.\n     Shri R.N. Dhorde h\/f. Shri B.P. Suryawanshi, Advocate\n\n\n\n\n\n     for the respondent.\n\n\n                            CORAM : P.V. HARDAS &\n                                    P.R. BORKAR, JJ.\n<\/pre>\n
                            DATED : 18th OCTOBER, 2008.\n<\/p>\n
                                         ::: Downloaded on – 09\/06\/2013 13:59:57 :::<\/span><\/p>\n
                                             (    2    )<\/p>\n
     JUDGMENT : [PER : P.R. BORKAR,J.] :-\n<\/p>\n
     .          Both         these     appeals            are       directed          against<\/p>\n
     judgment     and        order passed by the learned                        Ist      Adhoc<\/p>\n
     Additional        Sessions       Judge, Dhule, in                   Sessions          Case<\/p>\n
     No.61     of 1992 decided on 24.07.2006.                          Criminal Appeal<\/p>\n
     No.553      of      2006        is      filed        by      original            accused<\/p>\n
     No.5-Pandit        being        aggrieved by his conviction                         under<\/p>\n
     Section     302     and 307 of the I.P.C.                      and        sentence       to<\/p>\n
     suffer     imprisonment          for       life and to pay a                   fine      of<\/p>\n
     Rs.2000\/-\n<\/p>\n
                     in default to undergo rigorous imprisonment<\/p>\n
     for     three months for offence under Section 302 of the<\/p>\n
     I.P.C.      and sentence to suffer rigorous                             imprisonment<\/p>\n
     for     10 years and to pay fine of Rs.1000\/- in                                 default<\/p>\n
     to    undergo      rigorous imprisonment for one                           month       for<\/p>\n
     offence     under        Section        307 of the             I.P.C.          Criminal<\/p>\n
     Appeal     No.763        of     2006       is filed by              the     State      for<\/p>\n
     enhancement        of     sentences         awarded            to     said       accused<\/p>\n
     No.5-Pandit.            The     State      Government had                 also      filed<\/p>\n
     Criminal     Appeal           No.762 of 2006 against acquittal                           of<\/p>\n
     other     accused persons, but same was dismissed at                                   the<\/p>\n
     stage of admission.<\/p>\n
\n\n\n\n\n\n     2.         Original           accused           No.5-Pandit             (hereinafter\n\n     referred     to     as \"appellant-Pandit\") was convicted for\n\n\n\n\n                                                               ::: Downloaded on - 09\/06\/2013 13:59:57 :::<\/span>\n                                        (      3   )\n\n\n\n\n     causing     deaths        of his uncles Dipchand Deoram                        Patil,\n\n<\/pre>\n
     Shivlal Deoram Patil and Narayan alias Nanabhau Deoram<\/p>\n
     Patil.     He is convicted of attempting to commit murder<\/p>\n
     of   complainant P.W.1-Yashwant Ananda Patil and                                 other<\/p>\n
     witnesses.\n<\/p>\n
     3.         Originally       six       accused persons were                   put      on<\/p>\n
     trial.      Certain facts can be stated as undisputed                                 as<\/p>\n
     regarding        them     many witnesses have deposed                       and     the<\/p>\n
     defence     does        not dispute them.              Thus,       accused         No.1<\/p>\n
     Ananda<\/p>\n
     Nanabhau,
\n                had<\/p>\n
                        brothers, namely, deceased Narayan<\/p>\n
                      deceased     Dipchand           and      deceased
\n                                                                                      alias<\/p>\n
                                                                                 Shivlal.\n<\/p>\n
     Accused     No.2 Panabai is wife of accused No.1                             Ananda.\n<\/p>\n
     Accused      No.4-Milind            is       his       grandson.             Accused<\/p>\n
     No.5-Pandit        is     son of accused No.1 Ananda.                        Accused<\/p>\n
     No.3-Rajendra           Sitaram Shinde is son-in-law of accused<\/p>\n
     No.1.      Accused        No.6 Vidhyabai is daughter-in-law                           of<\/p>\n
     Ananda     being wife of his another son Vishwas.                              Ananda<\/p>\n
     has six     sons in all, namely, Atmaram who is father of<\/p>\n
     accused      No.4-Milind,                present            appellant-Pandit,<\/p>\n
     P.W.1-Yashwant,            Vishwas-husband                       of          accused<\/p>\n
     No.6-Vidhyabai,          Devidas      and         Baliram.            Pandit        was<\/p>\n
     serving     at     Pune at the relevant time and it is                             also<\/p>\n
     defence case that on 11.04.1992 he had come to village<\/p>\n
     Chhadwel     (Korde),        Tal.        Sakri,           Dist.         Dhule       for<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span>
\n                                            (    4   )<\/p>\n
     attending a fair at nearby temple.                         P.W.8-Kedji is son<\/p>\n
     of     Rupchand, who was brother of accused                           No.1-Ananda.\n<\/p>\n
     Rupchand had died prior to the incident.                              P.W.14-Sarla<\/p>\n
     is daughter of deceased Dipchand.                        There is no dispute<\/p>\n
     regarding above said relationship.\n<\/p>\n
     4.         It     is        further       prosecution         case         (regarding<\/p>\n
     which     there        is     sufficient evidence               of      prosecution<\/p>\n
     witnesses        and     also     about        which there            is     no     more<\/p>\n
     dispute)        that     sons of accused              No.1-Ananda,            namely,<\/p>\n
     P.W.1-Yashwant
\n                         ig  and Devidas were demanding<\/p>\n
     Accused No.1-Ananda and his other sons refused to give
\n                                                                              partition.\n<\/p>\n
     any     property        in     partition           to    P.W.1-Yashwant              and<\/p>\n
     Devidas.        In-fact, both of them were living separately<\/p>\n
     from     accused        No.1-Ananda.           Both      P.W.1-Yashwant              and<\/p>\n
     Devidas     were        residing          as tenants in           the       house      of<\/p>\n
     deceased Narayan.\n<\/p>\n
     5.         It is case of prosecution as disclosed in oral<\/p>\n
     evidence that prior to the incident on earlier evening<\/p>\n
     i.e.     on 11.04.1992, there was meeting at the house of<\/p>\n
     deceased        Narayan,       which       was     attended           by     deceased<\/p>\n
     Narayan,         deceased         Dipchand,              deceased            Shivlal,<\/p>\n
     P.W.-Kadji,            P.W.1-Yashwant          and         Devidas.           In     the<\/p>\n
     meeting     it     was decided to take bricks and mud                              which<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span>
\n                                        (   5   )<\/p>\n
     are     construction         material, to the house           of     accused<\/p>\n
     No.1-Ananda          and to erect a wall in tin portion of the<\/p>\n
     house     of       accused     No.1-Ananda,    so    as      to      provide<\/p>\n
     separate       residential accommodation to              P.W.1-Yashwant<\/p>\n
     and     Devidas.       Accordingly on 12.04.1992, which is day<\/p>\n
     of the incident, at about 7.00 a.m.                 all these persons<\/p>\n
     had     gone       with five bullock carts to a dry tank                   near<\/p>\n
     the     village where there was a brick-kiln.                   The bricks<\/p>\n
     and     mud        were loaded in bullock carts.             The     bullock<\/p>\n
     carts     were taken to the house of accused                  No.1-Ananda<\/p>\n
     and were unloaded and as per prosecution while bullock<\/p>\n
     carts were returning after unloading, the incident had<\/p>\n
     occurred.\n<\/p>\n
     6.         It is now well established by medical evidence<\/p>\n
     and     also other evidence that P.W.1-Yashwant, deceased<\/p>\n
     Dipchand, deceased Shivlal, deceased Narayan, original<\/p>\n
     accused No.4-Milind and appellant Pandit had sustained<\/p>\n
     burn     injuries.           All of them were first taken to                the<\/p>\n
     primary        health centre at Sakri and then some of                     them<\/p>\n
     were     shifted       to     the Civil Hospital,        Dhule.          As     a<\/p>\n
     result        of burn injuries Dipchand, Shivlal and Narayan<\/p>\n
     died.         It     has    also come in the    evidence           that       one<\/p>\n
     bullock        cart was damaged and a bullock had                  sustained<\/p>\n
     burn injury in the incident.\n<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span><\/p>\n
                                           (     6    )\n\n\n\n\n     7.           The        prosecution      wants       to       rely        on      dying\n\n\n\n\n                                                                                     \n     declarations             of   deceased Dipchand, deceased                      Shivlal\n\n     and     deceased          Narayan     recorded by Police                 and      their\n\n\n\n\n                                                             \n     common        dying       declaration recorded by                 the      Executive\n\n     Magistrate             P.W.15-A.P.Suryawanshi.               The statement             of\n\n\n\n\n                                                            \n     Yashwant          was recorded in the hospital was treated                             as\n\n     F.I.R.            and the crime was registered.                   P.W.1-Yashwant\n\n     was     also        party     to     the       common      dying        declaration\n\n\n\n\n                                             \n     recorded          by     P.W.15 - A.P.Suryawanshi.                    Besides        the\n\n     dying\n\n     P.W.1-Yashwant,\n                             \n                   declarations,          there\n\n                                   P.W.5-Devidas\n                                                     is        oral      evidence\n\n                                                                     Popat           Bedse.\n                                                                                            of\n                            \n     P.W.5-Devidas             Bedse     is different from               Devidas         s\/o.\n\n     Ananda        to whom reference was made earlier.                            In-fact,\n\n     Devidas           Ananda Patil is not examined.                   There is          also\n      \n\n\n     evidence          of P.W.8-Kadji Rupchand Borse, who was                            also\n   \n\n\n\n     injured           and P.W.14-Sarla Nandu Patil, who is daughter\n\n     of     deceased          Dipchand.       Evidence          of     P.W.6-Sahebrao\n\n     Borse        is     relevant to show that Pandit                    had        procured\n\n\n\n\n\n     petrol        which according to the prosecution was used by\n\n     him     in        causing     burn injuries to             deceased            persons,\n\n<\/pre>\n
     P.W.1-Yashwant and P.W.8-Kadji.<\/p>\n
\n\n\n\n\n\n     8.           The        learned advocate for the appellant-Pandit\n\n     Shri     R.N.Dhorde           attacked the dying declarations                        and\n\n\n\n\n                                                             ::: Downloaded on - 09\/06\/2013 13:59:58 :::<\/span>\n                                           (    7    )\n\n\n\n\n     oral     evidence          of above said witnesses                stating         that\n\n     right         from         the    first       dying      declaration,              the\n\n\n\n\n                                                                                   \n     prosecution             witnesses have changed their story as                        to\n\n     how     the        incident had occurred.             The prosecution              did\n\n\n\n\n                                                           \n     not     explain          the injuries on accused No.4-Milind                       and\n\n<\/pre>\n
     appellant-Pandit,                who was original accused No.5.                    The<\/p>\n
     story was inherently improbable.                      The scene of offence<\/p>\n
     is     also changed.             It is argued that          appellant-Pandit<\/p>\n
     should        be        acquitted by giving him benefit of                    doubt.\n<\/p>\n
     The     learned          A.P.P.     Shri K.G.      Patil        supported          the<\/p>\n
     prosecution.\n<\/p>\n
     person<\/p>\n
                               He sated that the burn injuries on<\/p>\n
                   of appellant-Pandit proves his presence.\n<\/p>\n
                                                                                        the<\/p>\n
                                                                                        The<\/p>\n
     involvement             of Pandit is consistently stated by                       all.\n<\/p>\n
     The     Trial Court has properly separated the truth from<\/p>\n
     the falsehood and the appeal filed by appellant-Pandit<\/p>\n
     should be dismissed.\n<\/p>\n
     9.         Before we go to the dying declarations and the<\/p>\n
     evidence           of    witness P.W.6-Sahebrao, we may refer                        to<\/p>\n
     other     evidence regarding which there is no challenge,<\/p>\n
     so     that in the light of said evidence, we can                             verify<\/p>\n
     the     veracity and evidentiary value of various                             pieces<\/p>\n
     of evidence.\n<\/p>\n
     10.        P.W.2-Dr.              V.N.    Patil examined at Exh.81 has<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span>
\n                                            (   8   )<\/p>\n
     stated        that he performed post mortem on the dead body<\/p>\n
     of     Dipchand     Deoram         Patil on 13.04.1992.                   He     found<\/p>\n
     superficial        to     deep injuries which were in all                          91%.\n<\/p>\n
     P.W.3-Dr.B.S.Kulkarni              examined       at Exh.83 has                stated<\/p>\n
     that     he     performed         post mortem on the dead                   body      of<\/p>\n
     Shivlal        Deoram     Patil       on 22.04.1992            and      found       85%<\/p>\n
     superficial        to     deep      burn      injuries.            P.W.4-Dr.P.B.\n<\/p>\n
     Patil     examined at Exh.85 has stated that he performed<\/p>\n
     post     mortem on the dead body of Narayan Deoram                               Patil<\/p>\n
     on     13.05.1992        and      stated      that        he     had      34%      burn<\/p>\n
     injuries.<\/p>\n
\n\n     Shivlal\n                        \n                       According        to      the\n\n                    died as a result of shock due to\n                                                       Doctors          Dipchand\n\n                                                                           superficial\n                                                                                         and\n                       \n<\/pre>\n
     and deep injuries whereas Narayan died due to shock of<\/p>\n
     septicemia with 34% burn injuries.\n<\/p>\n
     11.       P.W.7-Dr.            K.B.       Chachare examined at                 Exh.95<\/p>\n
     was     the Medical Officer at Rural Hospital, Sakri.                                 He<\/p>\n
     stated        that he was witness to the dying declarations.\n<\/p>\n
     He further stated that he examined P.W.8-Kadji who had<\/p>\n
     burn     wound     on left palm inner side.                    It was 1%           burn<\/p>\n
     injury        examined       at    2.05       p.m.on        12.04.1992.             The<\/p>\n
     patient        gave history of sustaining burn injury                            while<\/p>\n
     saving        others.        On    that day       he      examined          Sambhaji<\/p>\n
     Narayan        Patil, who had 3% burn injuries on both                             palm<\/p>\n
     inner     side.         He     gave       history       of     receiving           burn<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span>
\n                                              (    9     )<\/p>\n
     injuries        while saving others.                   Dr.        Chachare examined<\/p>\n
     Devidas        Ananda          Patil,       (son       of     accused         No.1)         on<\/p>\n
     25.04.1992           at     10.00       a.m.       and      found        healing         burn<\/p>\n
     wounds     on        right palm, inner side, right                          finger        and<\/p>\n
     index     finger.           The patient gave history of sustaining<\/p>\n
     burns with petrol and kerosene mixture.\n<\/p>\n
     12.        At        Exh.214          there is medical               certificate            of<\/p>\n
     P.W.1-Yashwant to show that Yashwant had sustained 23%<\/p>\n
     burn     injuries           mainly on hands, legs and                       head.         Dr.<\/p>\n
     Bhalde<\/p>\n
     Lecturer
\n                is<\/p>\n
                          examined          at Exh.205.\n<\/p>\n
                     in Government Medical College at Dhule.\n<\/p>\n
                                                                     He     was      Assistant\n\n                                                                                                 On\n                          \n     12.04.1992           he examined accused No.4-Milind Borse                                and\n\n     found     27%        burn injuries.              The break up of which                    was\n\n     given     as     face 9%, both upper limbs 15% and                                chest       &\n      \n\n\n     back     3%.     On the person of appellant-Pandit he                                  found\n   \n\n\n\n     34% burn injuries.                The break up of which was given as\n\n     face     9%,     both upper limbs 18% and chest &                               back      7%.\n\n     The     injuries were grievous in nature.                              In-fact, these\n\n\n\n\n\n     Exh.117        and        118 were admitted by the                     defence         under\n\n     Section        294        of     the    Cr.P.C.             and      Dr.      Bhalde        is\n\n     examined         to            show      that          appellant-Pandit                   and\n\n\n\n\n\n     P.W.4-Milind              were admitted in the Civil Hospital, due\n\n<\/pre>\n
     to burn injuries sustained by them.\n<\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span><\/p>\n
                                         (    10   )\n\n\n\n\n     13.          P.W.18-Head        Constable     - Walmik          Mali      proved\n\n<\/pre>\n
     spot     panchanama        which       is    at   Exh.180.             Kamalbai<\/p>\n
     Yashwant        Borse who is wife of P.W.1-Yashwant                     (P.W.1)<\/p>\n
     has     pointed out spot on 12.04.1992 at about 3.00 p.m.<\/p>\n
     The     place of offence was a narrow lane from the house<\/p>\n
     of P.W.1-Yashwant Ananda Patil to the house of accused<\/p>\n
     No.1-Ananda at village Chhadwel.                  About five feet away<\/p>\n
     from     Northern        wall    of the house of          Himmat        Baliram<\/p>\n
     Patil,        there was small area of 3 feet x 3 feet, which<\/p>\n
     was     shown     as     place of incident.          There       were       burnt<\/p>\n
     pieces<\/p>\n
     the     clothes.\n<\/p>\n
                   of clothes lying scattered.\n<\/p>\n
                              Half burnt white cap, half
\n                                                            There was ash<\/p>\n
                                                                        burnt
\n                                                                                      of<\/p>\n
                                                                                      two<\/p>\n
     white        shirts, one vest (Kopari) were attached.                         Some<\/p>\n
     ash     and     sample of ordinary earth were taken.                        At     a<\/p>\n
     distance of 18 feet, in a gutter, there was half burnt<\/p>\n
     crude        torch.    To a piece of wood some cloth was                      tied<\/p>\n
     and     it     was used as a torch.           About 61 feet from                 the<\/p>\n
     place        of incident, in a gutter, in front of house                         of<\/p>\n
     accused        Ananda,     one steel bucket was lying on                    which<\/p>\n
     there        was name of Vishwas Ananda Borse.                  It is argued<\/p>\n
     that     the     place of offence was changed.                  It does          not<\/p>\n
     indicate that bricks and mud were brought and unloaded<\/p>\n
     near the house of Ananda.                It has come in the evidence<\/p>\n
     of various eye-witnesses that the injured on receiving<\/p>\n
     burn     injuries started running here and there.                           Under<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span>
\n                                        (   11    )<\/p>\n
     the     circumstances, there could not have been spot                           of<\/p>\n
     incident of size 3 feet x 3 feet only.                      So, it is said<\/p>\n
     that    place     of      offence was changed or             it     does      not<\/p>\n
     disclose entire truth.\n<\/p>\n
     14.        P.W.9-G.T.        Patil,        P.W.10-M.N.            Patil       and<\/p>\n
     P.W.11-S.G.            Khairnar         have        turned            hostile.\n<\/p>\n
     P.W.13-Onkar Bedse who is examined at Exh.110 to prove<\/p>\n
     panchanama       Exh.     111 has stated that he has signed on<\/p>\n
     panchanama dated 17.04.1992, however, he does not know<\/p>\n
     glass    bottles<\/p>\n
     contents of the panchanama.                Under the panchanama five<\/p>\n
                              smelling of petrol were attached                    from<\/p>\n
     one     Bhatu Deochand Patil, who is not examined in this<\/p>\n
     case.\n<\/p>\n
     15.        Now      we     may   turn      to   evidence          of       dying<\/p>\n
     declarations        first    and      then we will          consider         oral<\/p>\n
     evidence.        P.W.7-Dr.         Chachare     and        P.S.I.        Chavan<\/p>\n
     (P.W.16)     have        proved some of the dying              declarations<\/p>\n
     recorded.        Since       P.W.1-Yashwant           is       alive,         his<\/p>\n
     statement        would      be   a    previous      statement.               When<\/p>\n
     Yashwant     was admitted in the Rural Hospital at Sakri,<\/p>\n
     his     statement was recorded by P.S.I.                   in presence          of<\/p>\n
     P.W.7-Dr.        Chachare and Dr.           Chachare has referred to<\/p>\n
     this    statement        which is later on treated                as     F.I.R.\n<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span><\/p>\n
                                        (    12   )\n\n\n\n\n     (Exh.80).         It     bears endorsement of the                Doctor        that\n\n     P.W.1-Yashwant          was    conscious.       It is          necessary          to\n\n\n\n\n                                                                                \n     reproduce        this F.I.R.       as it is the earliest                 version\n\n     regarding the incident.               P.W.1-Yashwant stated that on\n\n\n\n\n                                                        \n     12.04.1992        at     about     7.00     a.m.        appellant-Pandit,\n\n     Baliram,        Vishwas,      Milind, Rajendra and               Ananda        gave\n\n\n\n\n                                                       \n     threats        to Nanabhau that he should not allow Yashwant\n\n     to    reside in his house otherwise he would be                          killed.\n\n     At 9 a.m.        P.W.1 Yashwant, Nanabhau, Shivlal, Dipchand\n\n\n\n\n                                           \n     and     Devidas        were    going      outside       the      village        for\n\n\n\n     alighted        from\n                        \n     bringing bricks in bullock cart.                At that time Devidas\n\n                              the cart and from behind                appellant          -\n                       \n     Pandit,        accused     No.4-Milind, Atmaram,               accused         No.1\n\n     Ananda,        Vishwas,       accused No.3 -        Rajendra,           Baliram,\n\n     accused        No.6-Vidhyabai and accused No.2 Panabai came.\n      \n\n\n<\/pre>\n
     At that time their cart was 40 feet away from house of<\/p>\n
     accused        No.1.     In the hands of appellant-Pandit there<\/p>\n
     was     iron     bucket which contained mixture of                      kerosene<\/p>\n
     and     petrol.        He was having burning torch in his hand.\n<\/p>\n
     It    is    further       said that the torch in               the      hand      of<\/p>\n
     Atmaram was not burning.               Thereafter, appellant-Pandit<\/p>\n
     threw      kerosene on their person holding burning                          torch<\/p>\n
     in    front      in such a way that burning                kerosene          would<\/p>\n
     fall on the prosecution party and thus P.W.1-Yashwant,<\/p>\n
     Shivlal,        Nanabhau & Dipchand sustained burn injuries.\n<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span><\/p>\n
                                             (    13     )\n\n\n\n\n     Rear     side        of     bullock cart was also                burnt.          People\n\n     gathered        there.           Kadji Rupchand(P.W.8)                 extinguished\n\n\n\n\n                                                                                      \n     fire     on     the        person of        P.W.1       -Yashwant.            Somebody\n\n     brought        jeep        and    they      were brought           to     the       Rural\n\n\n\n\n                                                              \n     Hospital        at Sakri.         So, names of as many as 9 persons\n\n     gathering        with burning torches were disclosed.                              There\n\n\n\n\n                                                             \n     was     reference to only one cart and it is said that in\n\n     the      cart        P.W.1-Yashwant,               Shivlal,        Nanabhau           and\n\n<\/pre>\n
     Dipchand were all sitting and all were injured.\n<\/p>\n
     16.<\/p>\n
\n\n     dying\n                We\n\n               declarations\n                           \n                          may     compare this dying\n\n                                       of       three\n                                                                   declaration\n\n                                                            deceased,        which\n                                                                                          with\n\n                                                                                          were\n                          \n     recorded by P.S.I.               Sakri in presence of Dr.                     Chachare\n\n     and     proved        during       evidence of Dr.               Chachare.            Dr.\n\n     Chachare stated that P.S.I.                      Sakri recorded statements\n      \n\n\n     of     Dipchand,           Yashwant,        Shivlal and Narayan                in     his\n   \n\n\n\n     presence.            Before recording the statements the P.S.I.\n\n     had     asked other relatives of the injured to go out of\n\n     the     ward and thereafter relatives went out.                               The four\n\n\n\n\n\n     patients        were        in conscious state.                Accordingly,             he\n\n     made     endorsements and their statements were recorded.\n\n     It     is admitted by Dr.                Chachare in          cross-examination\n\n\n\n\n\n     that     all     the        patients were in one               ward.          Distance\n\n     between        two        cots was about 1 and half feet.                        P.S.I.\n\n     recorded        statement         of       P.W.1-Yashwant.              There        were\n\n\n\n\n                                                              ::: Downloaded on - 09\/06\/2013 13:59:58 :::<\/span>\n                                           (    14   )\n\n\n\n\n     about     20 - 25 persons who had brought patients in the\n\n     ward.     Police came 15 to 20 minutes after the patients\n\n\n\n\n                                                                                 \n     were brought to the Hospital.                  Amongst relatives there\n\n     were     also some ladies.               Dr.   Chachare admitted in his\n\n\n\n\n                                                        \n     cross-examination             that on the statements of Dipchand,\n\n     Nanabhau     and        Shivlal, he had not put endorsement                        at\n\n\n\n\n                                                       \n     the     beginning of recording of the statement that they\n\n     were     conscious.           But he put only one endorsement                      on\n\n<\/pre>\n
     each statement that they were conscious.\n<\/p>\n
     17.<\/p>\n
     stated
\n                P.S.I.<\/p>\n
\n\n                that\n                           \n                            he\n                                 Chavan       (P.W.16) examined at\n\n                                   went to the Rural         Hospital,\n                                                                                Exh.169\n\n                                                                                  as     he\n                          \n     received     message          from the Rural Hospital               that       four\n\n     persons     were        admitted         in the hospital due            to        burn\n\n     injuries.         So he made entry in the station diary                           and\n      \n\n\n     proceeded         to        the   hospital.        He    first          recorded\n   \n\n\n\n     statement        of     P.W.1-Yashwant and then of other                     three\n\n     injured.         It also appears that statements of deceased\n\n     Shivlal     and Narayan were recorded by P.S.I.                         Nizampur\n\n\n\n\n\n     (P.W.19-K.B.            Randive)         on    13.04.1992.            He       also\n\n     recorded supplementary statement of Yashwant.                            On that\n\n     day Dipchand had expired.\n\n\n\n\n\n     18.        The        dying declaration of Shivlal Deoram Patil\n\n\n\n\n                                                        ::: Downloaded on - 09\/06\/2013 13:59:58 :::<\/span>\n                                                  (    15     )\n\n\n\n\n     which        is        recorded on 12.04.1992 (Exh.261) is to                                 the\n\n     effect        that since accused No.1 Ananda was not                                     giving\n\n\n\n\n                                                                                              \n     share        to        his sons Yashwant and Devidas.                            There       were\n\n     Court        matters going on.                   On 12.04.1992 accused                     No.1-\n\n\n\n\n                                                                      \n     Ananda        had        given threats for allowing                          Yashwant         and\n\n     Devidas           to     reside        in       house       of      deceased          Narayan.\n\n\n\n\n                                                                     \n     Therefore,              on 12.04.1992 in the morning Yashwant                                 and\n\n     Devidas           asked        help     and therefore                 Shivlal         and     his\n\n     brothers had              taken       bullock         carts           for      transporting\n\n\n\n\n                                                    \n     bricks        and mud and unloaded the carts near the                                      house\n\n     of      accused\n\n     No.1-Ananda\n                               ig No.1-Ananda.\n\n                                  was      exhorting\n                                                           At\n\n                                                                others\n                                                                      that       time\n\n                                                                                 to      put\n                                                                                            accused\n\n                                                                                                   the\n                             \n     prosecution             witnesses           on    fire          and      kill       them      and\n\n     thereafter              appellant-Pandit brought a tin of kerosene\n\n<\/pre>\n
     and sprinkled kerosene on his person and on persons of<\/p>\n
     P.W.1-Yashwant and his brothers Narayan and Dipchanad.\n<\/p>\n
     At     that time accused No.4-Milind was holding                                       burning<\/p>\n
     torch        and        he put the three deceased and Yashwant                                  on<\/p>\n
     fire.         Thus           as per the dying declaration of                           Shivlal<\/p>\n
     recorded           on        12.04.1992, which is proved at                           Exh.261,<\/p>\n
     only     accused              Nos.      1,4       and       5     took       part      in     the<\/p>\n
     incident.               On     instigation of accused                       No.1,      accused<\/p>\n
     No.5 i.e.              appellant-Pandit had sprinkled kerosene and<\/p>\n
     it     was        appellant           No.4-Milind           who        put       above       said<\/p>\n
     persons           on     fire.        This description of                    the      incident<\/p>\n
                                                                      ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span>
\n                                              (     16     )<\/p>\n
     does         not     disclose          how     accused        No.4-Milind             and<\/p>\n
     appellant-Pandit                sustained          injuries.         According          to<\/p>\n
     this statement a tin of kerosene was brought by Pandit<\/p>\n
     and     no     bucket was used as stated by other                           witnesses<\/p>\n
     and as stated in the F.I.R.\n<\/p>\n
     19.          The     dying declaration of Narayan Borse is                              at<\/p>\n
     Exh.262.            It     is    to the effect that when                  they       were<\/p>\n
     unloading           bullock carts, accused No.1 was instigating<\/p>\n
     to      put        the     prosecution             witnesses       on     fire        and<\/p>\n
     appellant-Pandit<\/p>\n
     kerosene            on
\n                               ig    was holding kerosene tin.\n<\/p>\n
                                 three            deceased          persons\n                                                                                 He     threw\n\n                                                                                           and\n                             \n     P.W.1-Yashwant.                 Accused No.4-Milind who was                      holding\n\n     burning        torch       put them on fire.              So, this          story       is\n\n     consistent          with        what    Shivlal has stated,                 but      said\n      \n\n\n     story        does        not disclose how cart was partly                        damaged\n   \n\n\n\n<\/pre>\n
     and how one of the bullocks sustained burn injury.\n<\/p>\n
     20.          On     12.04.1992          dying declaration of                  Dipchand<\/p>\n
     (Exh.263) was recorded.                     He stated that when they were<\/p>\n
     unloading            the     carts,           appellant-Pandit,                accused<\/p>\n
     No.4-Milind,             Vishwas       and     accused No.1            Ananda        came<\/p>\n
     there.        Appellant-Pandit was holding a can of kerosene<\/p>\n
     and petrol.           Burning torch was in the hands of accused<\/p>\n
     No.4-Milind.             Appellant-Pandit threw kerosene on their<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span>
\n                                            (   17     )<\/p>\n
     person        and        accused     No.4-Milind set           them       on      fire.\n<\/p>\n
     Thus, the allegations in dying declaration recorded on<\/p>\n
     12.04.1992          were      against three accused persons.                         The<\/p>\n
     place     of offence mentioned in F.I.R.                       (Exh.80) was on<\/p>\n
     way to brick-kiln where injured were going to purchase<\/p>\n
     bricks        whereas as per dying declarations the place of<\/p>\n
     incident        was near house of accused No.1-Ananda                            after<\/p>\n
     building        material was unloaded from carts.                         Moreover,<\/p>\n
     as     per these dying declarations, appellant Pandit was<\/p>\n
     having a tin and not a bucket.                       The learned Additional<\/p>\n
     Sessions        Judge
\n                               ig did not find story given by<\/p>\n
     three deceased in their dying declarations at Exh.261,
\n                                                                                 all      the<\/p>\n
     262     and     263 to be reliable and he acquitted                            accused<\/p>\n
     No.1-Ananda and accused No.4-Milind.\n<\/p>\n
     21.        The       dying declarations of Shivlal and Narayan<\/p>\n
     were also recorded in the Civil Hospital on 13.04.1992<\/p>\n
     and     they        are     at     Exh.258 and 259.          So      far       as     the<\/p>\n
     incident            is     concerned      both        stated         that           their<\/p>\n
     statements          were correctly recorded, but they                        further<\/p>\n
     added     that when they unloaded the bricks and mud, and<\/p>\n
     were     taking          back their bullock carts Shivlal was                         in<\/p>\n
     his     bullock cart.              It was last bullock cart                 trailing<\/p>\n
     others.        Behind his bullock cart deceased Dipchand and<\/p>\n
     deceased        Narayan          were walking.        When they came                near<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span>
\n                                           (   18    )<\/p>\n
     the     house       of Himmat Ananda          Patil,       appellant-Pandit<\/p>\n
     came     running from his house with steel bucket in                              one<\/p>\n
     hand     and burning torch in other hand.                      Then he         threw<\/p>\n
     kerosene        mixed       with petrol, which was in                 the      steel<\/p>\n
     bucket,        on     the     person of P.W.1-Yashwant                and      three<\/p>\n
     deceased        and     set       them   on fire with          torch.          As     a<\/p>\n
     result,        they     all were injured.           One of the            bullocks<\/p>\n
     also     got        burn injury and therefore the                  bullock        ran<\/p>\n
     away.         Shivlal       got     down from the bullock               cart      and<\/p>\n
     extinguished          fire     on his clothes.            Sambhaji          Narayan<\/p>\n
     Patil<\/p>\n
     on     the others.\n<\/p>\n
               and Kadji Rupchand Patil also extinguished fire<\/p>\n
                                 Deceased Narayan in his statement                       at<\/p>\n
     Exh.259        said     that accused No.4-Milind was                    following<\/p>\n
     appellant-Pandit and some drops of kerosene cum petrol<\/p>\n
     fell     on     his     hand       and   he    sustained         burn       injury.\n<\/p>\n
     According        to     him Pandit had thrown burning torch                         on<\/p>\n
     them     and thus their clothes were got fired.                           In other<\/p>\n
     words     as        per statement of Narayan,              appellant-Pandit<\/p>\n
     came     running        with steel bucket           containing            kerosene<\/p>\n
     mixed with petrol in one hand and the burning torch in<\/p>\n
     other     hand.       Then he threw the mixture of kerosene on<\/p>\n
     the     witnesses       and then threw burning torch.                        It     is<\/p>\n
     further stated that accused No.3 Rajendra was standing<\/p>\n
     with      stick        behind        accused       No.4-Milind.             Accused<\/p>\n
     No.1-Ananda,            accused               No.2-Panabai,                accused<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span>
\n                                              (     19   )<\/p>\n
     No.6-Vidhyabai             were     standing near their house.                        The<\/p>\n
     fire      was        extinguished            by    his      son      Sambhaji         and<\/p>\n
     P.W.8-Kadji.               Fire on the person of                appellant-Pandit<\/p>\n
     and     accused No.4-Milind was extinguished by                               Subhash.\n<\/p>\n
     It is argued before us that earlier case being changed<\/p>\n
     at     every     stage.           There is attempt to                involve         more<\/p>\n
     accused.         Advocate          Shri       Dhorde        also       argued        that<\/p>\n
     Exh.258        and     259       are    long       statements.            The      dying<\/p>\n
     declarations were result of tutoring by the relatives.\n<\/p>\n
     It is difficult to reconcile complaint at Exh.80 which<\/p>\n
     involves<\/p>\n
     declarations
\n                     as<\/p>\n
                            many       as 9 accused           persons<\/p>\n
                            at Exh.261 to 263 recorded on 12.04.1992
\n                                                                             with       dying<\/p>\n
     in     which three accused persons are involved with                                  the<\/p>\n
     two     dying        declarations Exh.258 and 259                      recorded         on<\/p>\n
     13.04.2006.<\/p>\n
\n      \n   \n\n\n\n     22.        In        the     case of Vikas & Ors.                V\/s.       State       of\n\n     Maharashtra,          2008       AIR        SCW 915,\n                                                     915       the      Supreme         Court\n\n\n\n\n\n     considered       law        of     dying declaration               from       para      21\n\n     onwards    and after referring to various authorities in\n\n     para 36 observed thus:-\n\n\n\n\n\n<\/pre>\n
               “36.   The Court, referring to earlier case
\n               law, summed up principles governing dying
\n               declaration as under:\n<\/p>\n
               (i)              There       is    neither rule of law nor                    of<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span>
\n                       (   20   )<\/p>\n
      prudence that dying declaration               cannot        be
\n      acted upon without corroboration.\n<\/p>\n
      (ii)    If the Court is satisfied that the<\/p>\n
      dying declaration is true and voluntary it can
\n      base conviction on it, without corroboration.\n<\/p>\n
      (iii)   This Court has to scrutinise the dying
\n      declaration carefully and must ensure that the
\n      declaration is not the result of tutoring,
\n      prompting or imagination. The deceased had
\n      opportunity   to observe    and identify the<\/p>\n
      assailants and was in a fit state to make the
\n      declaration.\n<\/p>\n
      (iv)    Where dying declaration is suspicious
\n      it   should   not be    acted  upon   without
\n      corroborative evidence.\n<\/p>\n
      (v)     Where the deceased was unconscious and<\/p>\n
      could never make any dying declaration the
\n      evidence with regard to it is to be rejected.\n<\/p>\n
      (vi)    A dying declaration which suffers from<\/p>\n
      infirmity   cannot   form     the   basis   of
\n      conviction.\n<\/p>\n
      (vii)   Merely because a dying declaration
\n      does not contain the      details as to the
\n      occurrence, it is not to be rejected.\n<\/p>\n
      (viii) Equally, merely because it is a brief<\/p>\n
      statement, it is not to be discarded. On the
\n      contrary, the shortness of the      statement
\n      itself guarantees truth.\n<\/p>\n
      (ix)     Normally the Court in order to satisfy<\/p>\n
      whether deceased was in a fit mental condition
\n      to make the dying declaration look up to the
\n      medical opinion.     But where the eye witness
\n      has said that the deceased was in a fit and
\n      conscious    state   to     make   this   dying
\n      declaration,    the medical    opinion   cannot
\n      prevail.\n<\/p>\n
      (x)     Where the prosecution version differs
\n      from the version as     given in the dying
\n      declaration, the said declaration cannot be
\n      acted upon.”\n<\/p>\n
                                   ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span><\/p>\n
                                           (    21   )\n\n\n\n\n     .            Thus        one of the principles is that the                     Court\n\n     should       scrutinise the dying declaration carefully and\n\n\n\n\n                                                                                  \n     must     ensure          that   the declaration is not                result        of\n\n     tutoring          or     prompting or imagination.                 Where       dying\n\n\n\n\n                                                          \n<\/pre>\n
     declaration is suspicious, it should not be acted upon<\/p>\n
     without       corroborative           evidence.           Moreover,            where<\/p>\n
     prosecution             version differs from version given in the<\/p>\n
     dying       declaration, the said dying declaration                          cannot<\/p>\n
     be acted upon.\n<\/p>\n
     23.<\/p>\n
     recorded
\n                  In<\/p>\n
                            this   case    three dying         declarations<\/p>\n
                       on 12.04.1992 and two dying declarations are
\n                                                                                       are<\/p>\n
     recorded          on     13.04.1992.      It cannot be said that                  the<\/p>\n
     dying       declarations        are      not       product       of     tutoring.\n<\/p>\n
     Otherwise, there is no reason for change in the story.\n<\/p>\n
     The     above          said dying declarations referred to by                       us<\/p>\n
     were     recorded by Police and as observed in para 37 in<\/p>\n
     the case of Vikas (Supra) where a dying declaration is<\/p>\n
     recorded      by a competent Magistrate, it would stand on<\/p>\n
     a    much     higher footing.            In this case there is                 dying<\/p>\n
     declaration recorded by an Executive Magistrate and it<\/p>\n
     is    still different from other dying declarations                               and<\/p>\n
     the F.I.R.         As observed in para 41 of the above quoted<\/p>\n
     case,       ultimate test is whether the dying                      declaration<\/p>\n
     is truthful and voluntary.\n<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span><\/p>\n
                                                    (    22     )\n\n\n\n\n     24.        Executive               Magistrate Suryawanshi has recorded\n\n\n\n\n                                                                                              \n     dying     declaration                   at     Exh.171.        He     is      examined         as\n\n     P.W.15        at        Exh.169.             He stated that on 12.04.1992                      he\n\n\n\n\n                                                                     \n     received           requisition letter from City Police Station,\n\n     Dhule     for           recording             dying declarations               of     Shivlal\n\n\n\n\n                                                                    \n     Deoram        Patil, Dipchand Deoram Patil, Yashwant                                    Ananda\n\n<\/pre>\n
     Patil & Narayan Deoram Patil.Therefore, he went to the<\/p>\n
     Civil Hospital, contacted Medical Officer and told him<\/p>\n
     that     he        was intending to record statements                                of     said<\/p>\n
     persons.<\/p>\n
\n\n     persons\n                         The\n                               ig   Medical            Officer\n\n<\/pre>\n
                    were conscious and then this witness recorded
\n                                                                      stated        that       those<\/p>\n
     statement               at     Exh.           171,        which       is    statement          of<\/p>\n
     P.W.1-Yashwant.                    He        further stated that he                  obtained<\/p>\n
     thumb     impressions of Shivlal, Dipchand and Narayan on<\/p>\n
     the     statement             recorded by him.                 Thus, the            Executive<\/p>\n
     Magistrate               Suryawanshi                 recorded              statement           of<\/p>\n
     P.W.1-Yashwant, as stated by him in para 3 of Exh.169,<\/p>\n
     but     then        obtained thumb impressions of                             other       three<\/p>\n
     decreased           persons, as if it is their joint statement.\n<\/p>\n
     The      Trial           Court          did        ask     question         why      separate<\/p>\n
     statements              of Shivlal, Dipchand, Yashwant and Narayan<\/p>\n
     were     not        recorded and answer was four                            persons         were<\/p>\n
     admitted           in        the    hospital            and     they       were      kept      on<\/p>\n
     separate           cots,       but           in    same       room.        Therefore,          he<\/p>\n
                                                                     ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span>
\n                                        (     23     )<\/p>\n
     recorded           joint      statement           and      obtained            thumb<\/p>\n
     impressions.          According to him, he enquired with above<\/p>\n
     four     persons separately.             It is difficult to                believe<\/p>\n
     said     statement          Exh.171     as     dying       declaration              of<\/p>\n
     deceased       Shivlal,        Dipchand and Narayan.                  Exh.        171<\/p>\n
     clearly       shows that enquiries were made with                         Yashwant<\/p>\n
     and      his        statement    was         recorded      and      only       thumb<\/p>\n
     impressions          of three other injured (who                   subsequently<\/p>\n
     died)        were taken.       It is not possible to give                    status<\/p>\n
     of     dying declaration to said statement.                        At the        most<\/p>\n
     it     can<\/p>\n
     Yashwant.<\/p>\n
\n                    be\n                           \n                           said    that it is          previous\n\n<\/pre>\n
                     Cross-examination shows that it was for the
\n                                                                      statement          of<\/p>\n
     first        time the dying declaration was recorded by this<\/p>\n
     witness.           The witness could not tell whether Yashwant<\/p>\n
     had     less burn injuries than others.                    He also admitted<\/p>\n
     that the Medical Officer told him that it was Yashwant<\/p>\n
     who     was     conscious       and able to give             statement.             He<\/p>\n
     specifically          admitted        that Exh.171 is            statement          of<\/p>\n
     Yashwant.           There     is nothing in Exh.171                to     indicate<\/p>\n
     that the Magistrate enquired separately with Dipchand,<\/p>\n
     Narayan       or     Shivlal.         So,    we    will      consider            this<\/p>\n
     document       as only previous statement of P.W.1 Yashwant<\/p>\n
     and     not as dying declaration of Dipchand, Shivlal and<\/p>\n
     Narayan.\n<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span><\/p>\n
                                               (    24     )<\/p>\n
     25.         According to this statement (Exh.171) recorded<\/p>\n
     by     Executive Magistrate Suryawanshi, Yashwant and his<\/p>\n
     brothers           were asking for partition.                     Appellant Pandit<\/p>\n
     had     agreed in January to give four acres land,                                    share<\/p>\n
     in     the movable property and cattle to them.                                  Later on<\/p>\n
     he     also        said     that Yashwant and                Devidas          should       be<\/p>\n
     driven        out of the house.                He also threatened that                     he<\/p>\n
     would       first         take care of brothers and then he                           would<\/p>\n
     teach       lesson to Narayan, Shivlal, Dipchand and Lotan.\n<\/p>\n
     It     is further stated that in one cart they had                                    taken<\/p>\n
     bricks<\/p>\n
     side.\n<\/p>\n
                   and mud.\n<\/p>\n
                            ig     The cart of Shivlal was on the<\/p>\n
                 Behind that cart Yashwant, Narayan and Dipchand
\n                                                                                             back<\/p>\n
     were       walking.          In     the       cart       Shivlal        was      sitting.\n<\/p>\n
     Suddenly,          Yashwant        saw       that        appellant         Pandit        was<\/p>\n
     holding        a     bucket of petrol in one hand                         and     burning<\/p>\n
     torch       in another hand.                 At that time they were                   about<\/p>\n
     40     –    45 feet away from the place where                             bricks        were<\/p>\n
     unloaded.            So, Yashwant started running, Pandit threw<\/p>\n
     petrol        on     burning torch and threw that torch on                               the<\/p>\n
     person of said four persons.                       He was holding bucket of<\/p>\n
     petrol        in his hand.           Mouth of one bullock was                       burnt.\n<\/p>\n
     Atmaram        was        holding        torch which           was      not      lighted.<\/p>\n
\n\n\n\n\n\n     Accused        No.4-Milind had iron pipes.                        Baliram (who was\n\n     not     accused in the Trial Court) was having 2-3 bricks\n\n     pieces.            Vishwas        (who       was     also      not      accused)         was\n\n\n\n\n                                                                 ::: Downloaded on - 09\/06\/2013 13:59:58 :::<\/span>\n                                             (   25    )\n\n\n\n\n     holding     axe.            Rajendra       Sindhe        (accused         No.3)       was\n\n     holding bricks pieces.                 Accused No.1 Ananda had stick.\n\n\n\n\n                                                                                      \n     P.W.8     Kadji        tore his clothes on fire.                     It is       stated\n\n<\/pre>\n
     that he (P.W.1-Yashwant) wanted to come to front door.\n<\/p>\n
     Appellant        Pandit was running fast.                     He ran up to            the<\/p>\n
     water     tank.            In same state P.W.1-Yashwant                     also      ran<\/p>\n
     after     him.         Appellant-Pandit was entering houses                             of<\/p>\n
     some     persons,          but     P.W.1-Yashwant followed                    him     and<\/p>\n
     ultimately when appellant was in the house of Yashwant<\/p>\n
     Ramchandra        Salunke,            P.W.1-Yashwant asked inmates                      to<\/p>\n
     bring<\/p>\n
     giving     threats.\n<\/p>\n
               out appellant-Pandit, but those inmates started<\/p>\n
                                  Then Yashwant got confused and                          came<\/p>\n
     to     his cart.           His son made him to sit in the cart and<\/p>\n
     thereafter        he was brought to Dhule.                     Appellant-Pandit<\/p>\n
     and     accused        No.4-Milind were already brought in                            the<\/p>\n
     hospital     for treatment.                Subhash extinguished fire on<\/p>\n
     the     person        of     appellant-Pandit and put him                      in     the<\/p>\n
     vehicle.     So this previous statement of P.W.1-Yashwant<\/p>\n
     recorded         on        12.04.1992       at       7.10      p.m.         is      still<\/p>\n
     different from earlier versions.<\/p>\n
\n\n\n\n     26.        The     learned advocate rightly argued that                               the\n\n\n\n\n\n     case      described              is     inherently            improbable.               If\n\n     appellant-Pandit             was      holding        a    bucket          containing\n\n     kerosene     mixed with petrol in one hand and a                               burning\n\n\n\n\n                                                              ::: Downloaded on - 09\/06\/2013 13:59:58 :::<\/span>\n                                               (    26    )\n\n\n\n\n     torch        in other hand, it would have been difficult for\n\n     him     to     throw liquid in the bucket on                         P.W.1-Yashwant\n\n\n\n\n                                                                                       \n     and     three           deceased     persons with one hand.                     If     the\n\n     liquid        in        the     bucket was mixture             of     kerosene         and\n\n\n\n\n                                                               \n<\/pre>\n
     petrol and then it is difficult to believe that Pandit<\/p>\n
     was     holding           bucket in one hand and burning torch                           in<\/p>\n
     another            hand.         Petrol       is     inflammable              explosive<\/p>\n
     substance           and it would have exploded even before                             the<\/p>\n
     liquid        was        thrown on the prosecution witnesses.                            On<\/p>\n
     the     other           hand,     if we are to believe that                    the     the<\/p>\n
     bucket<\/p>\n
     throwing
\n                   was<\/p>\n
                              containing<\/p>\n
                        kerosene       unless
\n                                                  only<\/p>\n
                                                     clothes
\n                                                             kerosene,<\/p>\n
                                                                    of
\n                                                                              even<\/p>\n
                                                                           each      of
\n                                                                                          after<\/p>\n
                                                                                            the<\/p>\n
     injured        were           torched,       they would        not      catch        fire.\n<\/p>\n
     Kerosene            itself         is        not    inflammable,              explosive<\/p>\n
     material.               It is combustible material, which is                          used<\/p>\n
     as a domestic fuel.                 In our opinion, this argument has<\/p>\n
     much     merit.           It is difficult to believe the story                           of<\/p>\n
     appellant-Pandit holding kerosene mixed with petrol in<\/p>\n
     one     hand        and        burning torch in another                 and     running<\/p>\n
     after        the        carts which were about 40 to 45 feet                          away<\/p>\n
     from     his        house without there being explosion in                             the<\/p>\n
     middle.\n<\/p>\n
     27.          Before we draw our conclusions we may refer to<\/p>\n
     evidence           of     eye     witnesses and evidence                 of     witness<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span>
\n                                         (   27    )<\/p>\n
     Sahebrao       Borse (P.W.6).          So far as evidence of                 P.W.6<\/p>\n
     Sahebrao       Borse is concerned, he stated at Exh.89 that<\/p>\n
     since       childhood he has been resident of Chhadwel.                           On<\/p>\n
     the     day of incident at about 8.00 a.m.                     to 8.15         a.m.<\/p>\n
     he had gone to purchase mutton.                  He was in the market.\n<\/p>\n
     Appellant-Pandit came there and he asked if petrol was<\/p>\n
     available       as     he   required        it    for      going        outside.\n<\/p>\n
     P.W.6-Sahebrao          said that he was not having any                      idea.\n<\/p>\n
     Thereafter,          appellant     again     came to         him      near      the<\/p>\n
     mutton shop and said that one Bhatu Deochand Bedse was<\/p>\n
     go<\/p>\n
     having motor cycle and therefore P.W.6-Sahebrao should<\/p>\n
            and bring 4-5 litres petrol giving his                       reference.\n<\/p>\n
     Ordinarily, Sahebrao would have asked appellant-Pandit<\/p>\n
     to     go     himself to Bhatu Deochand Bedse                  directly         for<\/p>\n
     getting       petrol.       But    according          to     Sahebrao,            he<\/p>\n
     accepted       Rs.100\/- given by appellant-Pandit and                          went<\/p>\n
     to     the house of Bhatu Deochand Bedse.                    He told         Bhatu<\/p>\n
     Deochand       Bedse that Pandit asked him to bring                        petrol<\/p>\n
     as     he     urgently      wanted to go         outside.          Thereafter,<\/p>\n
     Bhatu took out petrol from the tank of his motor cycle<\/p>\n
     in     five bottles.        Bhatu accepted Rs.90\/- and returned<\/p>\n
     Rs.10\/-.        Thereafter,        P.W.6-Sahebrao              carried         five<\/p>\n
     bottles       of petrol in a bag and kept same at the floor<\/p>\n
     mill     of Raghunath father-in-law of Pandit and he went<\/p>\n
     back     to    his house.         It is further stated that                  Bhatu<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span>
\n                                             (    28     )<\/p>\n
     asked him to return bottles and bags immediately.                                      So,<\/p>\n
     PW6-Sahebrao          went       to    the floor           mill       of     Raghunath<\/p>\n
     Bedse.         Raghunath told him that accused                          No.4-Milind,<\/p>\n
     accused No.3-Rajendra had taken away petrol bottles in<\/p>\n
     the     bag.         Thereafter, P.W.6-Sahebrao went to                            market<\/p>\n
     area     and     sat on the Ota of Maruti temple.                            15 to       20<\/p>\n
     minutes        thereafter Tillu the son of Raghunath brought<\/p>\n
     empty        bottles and bag to him and he returned them                                 to<\/p>\n
     Bhatu        Deochand.           Thereafter, at about 9.30 a.m.                          to<\/p>\n
     10.00        a.m.,        the incident took place.                  He saw         people<\/p>\n
     running<\/p>\n
     same<\/p>\n
                    here and there.\n<\/p>\n
              bottles and nylon bag.\n<\/p>\n
                                                He identified Article 10<\/p>\n
                                                       These bottles were
\n                                                                                              as<\/p>\n
                                                                                           sent<\/p>\n
     to C.A.        and the C.A.            detected residuals of kerosene.\n<\/p>\n
     C.A.         report        is at Exh.15.           C.A.       report shows            that<\/p>\n
     steel        bucket        attached        (which is Article) 9                 had      no<\/p>\n
     kerosene.        Same was case with Article 2 – partly burnt<\/p>\n
     white        shirt and earth found at the place of incident.\n<\/p>\n
     If     petrol        was     purchased from Bhatu,                  then       question<\/p>\n
     arises how in bottles there was detection of kerosene.\n<\/p>\n
     We     can     understand,            if kerosene residuals                  had      been<\/p>\n
     found        in the bucket, as according to the                          prosecution<\/p>\n
     it     was     the very bucket which was used                         for      carrying<\/p>\n
     petrol        mixed with kerosene.                It is nowhere case                  that<\/p>\n
     said     bottles          were     used.          So,         story     as     a    whole<\/p>\n
     described            by      Sahebrao        is         not      convincing            and<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span>
\n                                                 (    29   )<\/p>\n
     trustworthy.             It is not clear why Sahebrao should take<\/p>\n
     upon     himself             to     meet Bhatu          Deochand          and      purchase<\/p>\n
     petrol        for        appellant Pandit, when as per                         the        story<\/p>\n
     name     of        Pandit was enough to get petrol                           from         Bhatu<\/p>\n
     Deochand.               In     this     case         Bhatu         Deochand          is     not<\/p>\n
     examined.               Raghunath          Bedse is not examined.                     It     is<\/p>\n
     stated        that it is accused No.                     3 and 4 who took                  away<\/p>\n
     petrol        bottles          and bag from Raghunath Bedse and                            not<\/p>\n
     the     appellant.             Moreover, petrol tank of motor                           cycle<\/p>\n
     has capacity of 8-10 litres and generally if petrol is<\/p>\n
     urgently<\/p>\n
     litre<\/p>\n
                       needed for a motor cycle, hardly one or<\/p>\n
                  petrol would be sufficient for reaching nearest
\n                                                                                                two<\/p>\n
     petrol        pump        or taluka place.               So story of supply                  of<\/p>\n
     five     litres           petrol       by       Bhatu     Deochand           to      accused<\/p>\n
     persons            is        not     reliable.           In        cross-examination<\/p>\n
     P.W.6-Sahebrao                admitted that deceased Shivlal was his<\/p>\n
     uncle;            and        P.W.1-Yashwant so also Devidas were                           his<\/p>\n
     friends.            He was not having his own motor cycle.                                   He<\/p>\n
     runs     a Pan Shop in the market area.                             It is open             from<\/p>\n
     7=00     –        7=30 a.m.          to 12=00 noon and then from                          01.30<\/p>\n
     p.m.         to     7.00 p.m.          It is also said                that        appellant<\/p>\n
     Pandit        had        a     Scooter and it is said                   that       whenever<\/p>\n
     appellant-Pandit                   came to Chhadwel from Pune, he                         used<\/p>\n
     to     bring Scooter.                This is also not reliable, because<\/p>\n
     distance          between           Pune       and Sakri is           more       than       200<\/p>\n
                                                                   ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span>
\n                                              (     30    )<\/p>\n
     miles.            Mutton        shop is five feet away from                   the     Pan<\/p>\n
     shop     of P.W.6.              It is also difficult to believe                      that<\/p>\n
     he     would           abandon his own business and                  would        oblige<\/p>\n
     appellant           Pandit       in     procurring          petrol.           He      was<\/p>\n
     confronted             with portion marked “A” from his statement<\/p>\n
     dated        14.04.1992          and        he denied it.          It       is     stated<\/p>\n
     therein           that        Sahebrao told appellant Pandit that                       he<\/p>\n
     had no time and would not go to Bhatu Deochand.                                    It is<\/p>\n
     also     not           stated that appellant came to                   Mutton        shop<\/p>\n
     twice         to         meet      Sahebrao.              So,        evidence           of<\/p>\n
     P.W.6-Sahebrao<\/p>\n
     find     any
\n                               ig  is false and untrustworthy.\n<\/p>\n
                            corroboration to the evidence                   of
\n                                                                                 We do not<\/p>\n
                                                                                   Sahebrao<\/p>\n
     Borse        to        show     that appellant          Pandit       had         procured<\/p>\n
     petrol through him.\n<\/p>\n
     28.          P.W.1-Yashwant             Patil       is examined at               Exh.79.\n<\/p>\n
     He stated that he and Devidas were demanding partition<\/p>\n
     and     on        that        count there were          disputes        with        other<\/p>\n
     members           of     the     family.       Yashwant and          Devidas         were<\/p>\n
     residing           separately          in    the house of          uncle         Narayan<\/p>\n
     alias        Nanabhau as tenants.                  On the day of incident at<\/p>\n
     about        7.00        a.m.      in the         morning     appellant-Pandit,<\/p>\n
     accused No.4-Milind, accused No.3-Rajendra and accused<\/p>\n
     No.1-Ananda              had come to the house of Narayan and gave<\/p>\n
     threats           of     assaulting         him      in-case       he        continued<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span>
\n                                             (     31   )<\/p>\n
     P.W.1-Yashwant             and    Devidas to remain tenants in                       his<\/p>\n
     house.        P.W.1-Yashwant said that he was witness to the<\/p>\n
     incident           of       threats.         After       sometime            Narayan,<\/p>\n
     Dipchand,          Shivlal,       P.W.8-Kadji, Uttam and Ladku                       met<\/p>\n
     P.W.1-Yashwant             and    Devidas and told that they                      would<\/p>\n
     erect     wall          in the house of accused               No.1-Ananda             and<\/p>\n
     they     decided among themselves to construct a wall                                  in<\/p>\n
     the house so that Yashwant and Devidas could reside in<\/p>\n
     the     house of Ananda and thereafter Narayan, Dipchand,<\/p>\n
     Shivlal,        P.W.8-Kadji           and     uttam took          their       bullock<\/p>\n
     carts<\/p>\n
     bricks.<\/p>\n
\n               towards\n                              igoutskirts         of   the\n\n<\/pre>\n
                        Bricks and mud were loaded and they came
\n                                                                village         to     bring<\/p>\n
                                                                                            to<\/p>\n
     the     house of accused No.1 and unloaded bricks and mud<\/p>\n
     near     house          of accused No.1-Ananda.               Since it          was      a<\/p>\n
     small     lane, first cart which entered the land had                                  to<\/p>\n
     leave     last and thus bullock cart of Shivlal was                                 last<\/p>\n
     to     leave the house of Ananda.                     It was about 9.00 a.m.<\/p>\n
     When Shivlal was taking back his cart, P.W.1-Yashwant,<\/p>\n
     his     uncle        Dipchand and Narayan were                  following           said<\/p>\n
     cart     on        foot.      At that time,            appellant-Pandit               and<\/p>\n
     accused        No.4-Milind            came from the side of                house       of<\/p>\n
     Ananda        i.e.         from back side.            Appellant         Pandit        was<\/p>\n
     holding        a     bucket in one hand and a burning torch                            in<\/p>\n
     another        hand.        Accused          No.4-Milind          was      following<\/p>\n
     appellant-Pandit.                It     is    stated         that       Pandit        was<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span>
\n                                           (     32    )<\/p>\n
     holding        bucket       in     his     right hand up            to     level       of<\/p>\n
     shoulder.            We have to consider possibility of holding<\/p>\n
     bucket        full of liquid at such level.                    When        attention<\/p>\n
     of     Yashwant        was       drawn to appellant-Pandit,                    he    was<\/p>\n
     throwing        liquid       on     their       person.        At        that       time,<\/p>\n
     Yashwant        smelled        smell of kerosene and petrol.                         The<\/p>\n
     liquid        fell     on    the     person       of       Dipchand,        Narayan,<\/p>\n
     Shivlal        and     Yashwant.          Thereafter,        appellant-Pandit<\/p>\n
     moved the burning torch towards them.                          As a result all<\/p>\n
     of     them,     so     also bullock of the                cart      got        burning<\/p>\n
     injuries.\n<\/p>\n
                          P.W.8-Kadji, Sambhaji extinguished fire on<\/p>\n
     his person and the injured were taken to the hospital.\n<\/p>\n
     29.        P.W.1-Yashwant                admitted       that          he        lodged<\/p>\n
     complaint            Exh.80,        but     denied         that          his        dying<\/p>\n
     declaration          Exh.         171 was recorded by the                  Executive<\/p>\n
     Magistrate.            He    said        that    he    did     not        give       such<\/p>\n
     statement        and it is false one.                 In    cross-examination<\/p>\n
     para     12, he admitted that Ananda was 82 years of                                 age<\/p>\n
     or     it is denied that Ananda had been walking with the<\/p>\n
     help     of     a stick for previous 10 years.                       It     is      also<\/p>\n
     admitted        that no civil suit for partition was                            filed.<\/p>\n
\n\n\n\n\n\n     In     other     words, evidence of               P.W.1-Yashwant               clearly\n\n     shows     that all prosecution witnesses were taking                                 law\n\n     in     their     hands and wanted to erect wall forcibly                              in\n\n\n\n\n                                                            ::: Downloaded on - 09\/06\/2013 13:59:58 :::<\/span>\n                                           (     33    )\n\n\n\n\n     the     house of accused No.1-Ananda.                     They had          unloaded\n\n     mud     and bricks brought in the carts for that purpose.\n\n\n\n\n                                                                                    \n     The     story that in the morning of the day of                             incident\n\n     accused        Nos.     1,3 to 5 came to the house of                        Narayan\n\n\n\n\n                                                            \n     and     gave     him    threats is not finding                    place      in     the\n\n     original        complaint       or       the dying        declarations.               In\n\n\n\n\n                                                           \n     cross-examination             in     para       17,       the      witness          was\n\n     contradicted          with     his previous statement                    that      when\n\n     original        accused Nos.1to6, Atmaram, Vishwas,                          Baliram\n\n\n\n\n                                             \n     had come from back side.                 They were proceeding towards\n\n     brick-kiln.\n\n     that\n                           \n<\/pre>\n
                           Witness denied the portion marked “A” to<\/p>\n
              effect from his complaint.                    He stated in para 18<\/p>\n
     that     Vishwas and Baliram were not present at Chhadwel<\/p>\n
     on     the     day     of    incident.           It    shows       that      in     the<\/p>\n
     complaint-Exh.80,            PW1     -Yashwant          involved          names       of<\/p>\n
     innocent        persons who were not present at the                          village<\/p>\n
     on     the day of incident.                The witness also denied that<\/p>\n
     Nanabhau,        Shivlal,       Dipchand,            Devidas       proceeded          to<\/p>\n
     bring        bricks    only     in one bullock cart                  and     portion<\/p>\n
     marked        “B” from Exh.80 was denied.                   It shows that             as<\/p>\n
     per     earliest       version       in         one    cart        PW1-Yashwant,<\/p>\n
     Narayan,        Shivlal,       Dipchand         were      sitting         when      the<\/p>\n
     inflammable           liquid         was     thrown          on       them,         but<\/p>\n
     P.W.1-Yashwant          said portion to that effect is                          false.<\/p>\n
\n\n     The     witness       admitted that Article 9 is                     a     stainless\n\n\n\n\n                                                            ::: Downloaded on - 09\/06\/2013 13:59:58 :::<\/span>\n                                        (     34    )\n\n\n\n\n     steel        bucket whereas in the F.I.R.it was stated                        that\n\n     an     iron bucket was used.            It is also not mentioned in\n\n\n\n\n                                                                               \n     F.I.R.Exh.80         that it contained mixture of petrol                       and\n\n     kerosene.       The witness denied that he had seen mixture\n\n\n\n\n                                                       \n     of     kerosene       and petrol in the bucket.               Thus      portion\n\n<\/pre>\n
     marked       “D” to that effect is denied from Exh.80.                         The<\/p>\n
     witness also denied portion marked “E” which is to the<\/p>\n
     effect that Atmaram was also holding torch, but it was<\/p>\n
     not     burning.        Witness       further      denied        that       while<\/p>\n
     proceeding          towards brick-kiln, appellant Pandit threw<\/p>\n
     kerosene<\/p>\n
     Portion       marked<\/p>\n
                    on them by holding a burning torch in front.\n<\/p>\n
                              “F” to that effect was               also      denied.\n<\/p>\n
     So,     P.W.1-Yashwant        has completely changed his                    story<\/p>\n
     and     he     was contradicted with portions marked “A”                         to<\/p>\n
     “G” from his complaint Exh.80.\n<\/p>\n
     30.          Thus    P.W.1-Yashwant has not only disowned                        so<\/p>\n
     called       joint     statement      of him      and     three        deceased<\/p>\n
     persons       recorded       by   the        Executive      Magistrate           at<\/p>\n
     Exh.171,       but he also denied material portions                       marked<\/p>\n
     “A”     to     “G”    from    his statement at           Exh.80.          It     is<\/p>\n
     suggested       in para 19 to P.W.1-Yashwant that when they<\/p>\n
     were     proceeding towards brick kiln,                 appellant-Pandit<\/p>\n
     and     accused       No.4-Milind       came, and then           Gulab        s\/o.<\/p>\n
\n\n     Shivlal       poured     mixture      of petrol on the             person        of\n\n\n\n\n                                                       ::: Downloaded on - 09\/06\/2013 13:59:58 :::<\/span>\n                                               (    35   )\n\n\n\n\n     appellant-Pandit             and accused No.4-Milind.                    While they\n\n     were     offering resistance, in the process, the                               liquid\n\n\n\n\n                                                                                     \n     fell     on P.W.1-Yashwant and deceased Narayan, deceased\n\n     Dipchand,        deceased             Shivlal, Kedar,         Appellant-Pandit\n\n\n\n\n                                                             \n<\/pre>\n
     and accused No.4-Milind and all of them sustained burn<\/p>\n
     injuries.            It     is        also suggested that           in     the      same<\/p>\n
     process, bullock of the cart also sustained injury.\n<\/p>\n
     31.       Omission           was        also brought on record that                    in<\/p>\n
     F.I.R.         at        Exh.80, it is not mentioned that at                        7.00<\/p>\n
     a.m.\n<\/p>\n
     Narayan
\n               accused<\/p>\n
                    and
\n                               igNos.\n<\/p>\n
                               told
\n                                              1,3 to 5 came to the<\/p>\n
                                           him not to continue
\n                                                                                house<\/p>\n
                                                                         Yashwant
\n                                                                                            of<\/p>\n
                                                                                          and<\/p>\n
     Devidas        to        reside in his house as tenants                    and      gave<\/p>\n
     threats        to        Narayan.       In-fact, in        complaint            Exh.80,<\/p>\n
     there     is        no     mention        that it      was    decided           between<\/p>\n
     Yashwant,        Narayan,             Devidas,     Dipchand,          Shivlal        and<\/p>\n
     Kedar     to        construct wall in the house of                     Ananda,         so<\/p>\n
     that     Devidas and Yashwant could reside in that house.\n<\/p>\n
     Contradiction             was     also        brought on      record         that      in<\/p>\n
     F.I.R.         Exh.80,           it     is not mentioned that              the      cart<\/p>\n
     driven     by Shivlal was trailing other carts and                                P.W.1<\/p>\n
     -Yashwant, his uncle Dipchand and Narayan were walking<\/p>\n
     behind the cart and at that time appellant -Pandit and<\/p>\n
     accused        No.4-Milind             came    from the       house        of     their<\/p>\n
     father from behind.                   So, there are material omissions.\n<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span><\/p>\n
                                        (   36    )\n\n\n\n\n     The    case      made out before police in             F.I.R.Exh.80             or\n\n     before     the Executive Magistrate in statement                       Exh.171\n\n\n\n\n                                                                              \n     are disowned.          In para 23, P.W.1 -Yashwant stated that\n\n     no one recorded his statement besides P.S.I.                          Randive,\n\n\n\n\n                                                      \n     while he was in the Civil Hospital.                   He also said that\n\n     he      never        referred    to   Shivlal       as     Shivaji.           The\n\n\n\n\n                                                     \n     executive Magistrate did not record his statement.                              He\n\n     also     denied that he used surname Borse.                    Witness said\n\n     that       he        has    not       stated        portions             marked\n\n\n\n\n                                          \n<\/pre>\n
     “B”,”C”,”D”,”E”&”F”             from his statement Exh.171.                   So,<\/p>\n
     in our opinion, P.W.1-Yashwant cannot be believed.\n<\/p>\n
     32.        P.W.5-Devidas          Popat    Bedse      is     examined           at<\/p>\n
     Exh.87.         He     resides at Chhadwel.         He stated that              at<\/p>\n
     the    time      of incident, he was standing on the Ota                        of<\/p>\n
     his    house.          House of accused No.1 was 70 to 80                    feet<\/p>\n
     away     from his house.          At that time five bullock carts<\/p>\n
     loaded     with bricks and mud were brought to the                         house<\/p>\n
     of     Ananda and they were unloaded.               According to             this<\/p>\n
     witness       the     bullock carts were brought               by     Narayan,<\/p>\n
     Dipchand,       Shivram,        P.W.8-Kadji,        Rupchand,            Uttam,<\/p>\n
     Ratilal,        one Bhil and Subhash.           It may be noted              that<\/p>\n
     as     per evidence of P.W.14-Sarla, her brother                       Subhash<\/p>\n
     was at his house and was not with the bullock carts at<\/p>\n
     stated     by this witness Devidas.             It is further stated<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span>
\n                                           (   37    )<\/p>\n
     that after unloading, the bullock carts were returning<\/p>\n
     back and the last one was of Shivlal.                        P.W.1-Yashwant,<\/p>\n
     Dipchand           and Narayan were walking behind the                     bullock<\/p>\n
     cart     of        Shivlal and at that          time      appellant-Pandit,<\/p>\n
     accused        No.4-Milind came from their house.                       Appellant<\/p>\n
     Pandit        was     having torch in right hand and bucket                         in<\/p>\n
     another.            Petrol from bucket was poured by                    appellant<\/p>\n
     Pandit         on     P.W.1-Yashwant,           Dipchand,          Narayan        and<\/p>\n
     Shivlal.            The     same    petrol     fell on       the      person        of<\/p>\n
     appellant-Pandit                and accused No.4-Milind.              Because of<\/p>\n
     burning<\/p>\n
     Some
\n                    torch
\n                            ig   all of them sustained<\/p>\n
              petrol also fell on a bullock which was injured.\n<\/p>\n
                                                                  burn       injuries.\n                          \n     He     admitted           that there are other houses               around        the\n\n     house     of        accused No.1.        It was suggested that he                   is\n\n     friend        of     Kedar       Shivlal and Sambhaji            Narayan.           He\n      \n\n\n     denied        this        but    admitted     that     Kedar       Shivlal        and\n   \n\n\n\n     Sambhaji           Narayan are on visiting terms with him.                          He\n\n     further        stated in para 5 that on the day of                        incident\n\n     it     was decided amongst the relatives of Yashwant                              and\n\n\n\n\n\n<\/pre>\n
     Devidas to construct wall in the house of accused No.1<\/p>\n
     Ananda for residence of Yashwant and Devidas.                              He also<\/p>\n
     said     that        relatives who were on the side of                     Devidas<\/p>\n
     and     Yashwant          took such decision.           According          to     him<\/p>\n
     there     were        in all 10-12 persons along                 with      bullock<\/p>\n
     carts.        The bullock cart of Shivlal was about 100 feet<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span>
\n                                              (    38     )<\/p>\n
     behind        other bullock carts which were near his                               house<\/p>\n
     at     the time of incident.                  The bullock cart of Shivlal<\/p>\n
     has      just        started          from         the    house         of       accused<\/p>\n
     No.1-Ananda.              This     is       contrary to         the      version         of<\/p>\n
     P.W.1-Yashwant, who stated that they had crossed about<\/p>\n
     40     feet     from the house of Ananda, when the                             incident<\/p>\n
     took     place.          So, the bullock cart of Shivlal was near<\/p>\n
     the house of Ananda.                  According to the witness Devidas<\/p>\n
     the     incident          had taken place 50 feet away                       from      his<\/p>\n
     house.         He    did        not raise any shouts on                  seeing        the<\/p>\n
     appellant<\/p>\n
     some     foul play.\n<\/p>\n
                      with bucket and torch, though he<\/p>\n
                                    According to this witness
\n                                                                                  suspected<\/p>\n
                                                                                  Yashwant,<\/p>\n
     Dipchand       and        Narayan were proceeding along with                           the<\/p>\n
     bullock       cart        of Shivlal.          Two were on both sides                    of<\/p>\n
     the     corners of bullock cart and third was behind                                   the<\/p>\n
     cart.         It was a steel bucket.                    It was suggested              that<\/p>\n
     he was not telling truth.                    The defence story suggested<\/p>\n
     to     P.W.1-Yashwant was also suggested to this                                witness<\/p>\n
     and he denied the same.                     According to this witness the<\/p>\n
     appellant first threw petrol from distance of 4-5 feet<\/p>\n
     then     threw       the        burning torch.           He     could        not      tell<\/p>\n
     exactly on whom the burning torch fell, but saw flames<\/p>\n
     spreading.           He        denied       that        Subahsh       Dipchand         was<\/p>\n
     standing       on        Ota     of     his house at the              time       of    the<\/p>\n
     incident.           He     said that Subhash Dipchand                      was      along<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span>
\n                                            (    39     )<\/p>\n
     with     loaded        bullock carts.             However, the            very       fact<\/p>\n
     that     this        witness was aware of earlier                      decision         of<\/p>\n
     P.W.1 Yashwant, deceased persons and others to collect<\/p>\n
     building        material        and forcibly make construction                          in<\/p>\n
     the      house        of     Ananda       shows         that     he     is     not      an<\/p>\n
     independent           witness.       Such knowledge could be only to<\/p>\n
     close friends and confidante.<\/p>\n
\n\n\n\n     33.        The        next     witness       is        P.W.8-Kadji            Rupchand\n\n\n\n\n                                              \n     Borse.       As        per     evidence           of     P.W.1-Yashwant               and\n\n     P.W.5-Devidas,\n\n     accompanying\n                            ig    Kadji\n\n                            Yashwant,\n                                               was\n\n                                               Devidas,\n                                                       one       of\n\n                                                                 Ananda,\n                                                                           the      persons\n\n                                                                                   Shivlal,\n                          \n     Dipchand        and     Narayan.          According to           P.W.8-Kadji            on\n\n     11.04.1992        at 7 to 8 p.m.                there was meeting of                 said\n\n     relatives        at     the house of Narayan Patil and                         it     was\n      \n\n\n     decided         in     the     meeting           that     they        should        bring\n   \n\n\n\n     construction material on the next day i.e.                                12.04.1992\n\n     and     construct          a wall inside the house of Ananda                          for\n\n     the     purpose of residence of Yashwant and Devidas.                                   No\n\n\n\n\n\n     other     witness          stated that on earlier day                     there       was\n\n     meeting     and such decision was taken.                           P.W.1-Yashwant\n\n     does     not support this.                According to this witness                     on\n\n\n\n\n\n     next     day,        they had taken five bullock                     carts       loaded\n\n     with     bricks        and     mud    to the           house     of     Ananda        and\n\n     building        material        brought in the carts was                      unloaded\n\n\n\n\n                                                              ::: Downloaded on - 09\/06\/2013 13:59:58 :::<\/span>\n                                           (    40    )\n\n\n\n\n<\/pre>\n
     and while returning back, it was cart of Shivlal which<\/p>\n
     was     behind other carts.               Shivlal himself was              driving<\/p>\n
     the     cart and P.W.1-Yshwant, Narayan and Dipchand were<\/p>\n
     proceeding            behind        the    carts.          At       that         time<\/p>\n
     appellant-Pandit             came holding one steel bucket in his<\/p>\n
     right        hand     and burning torch was in his                  left        hand.\n<\/p>\n
     Behind, appellant Pandit there was accused No.4-Milind<\/p>\n
     and     behind        Milind, there was accused                 No.3-Rajendra.\n<\/p>\n
     Accused        No.3-Rajendra         and       accused     No.4-Milind            had<\/p>\n
     sticks        in their hands.            Appellant-Pandit was              running<\/p>\n
     with<\/p>\n
     hand
\n              bucket<\/p>\n
                  towards<\/p>\n
                            in right hand and burning torch in<\/p>\n
                                  Dipchand,         Narayan       and        Yashwant.\n<\/p>\n
                                                                                      left<\/p>\n
     Thereafter,           appellant-Pandit sprinkled kerosene                        from<\/p>\n
     the bucket towards Dipchand, Narayan, Yashwant, Ananda<\/p>\n
     and others and threw burning torch in the direction of<\/p>\n
     Dipchand        and others and thereafter Shivlal, Dipchand,<\/p>\n
     Narayan and Yashwant sustained burn injuries.                              Witness<\/p>\n
     said     that he saw the incident while standing in front<\/p>\n
     of     his house.          His house is 100 – 150 feet away                      from<\/p>\n
     the     house        of accused No.1-Ananda.               He      specifically<\/p>\n
     admitted        that Vishwanath Ananda Patil was not present<\/p>\n
     on     the     day     of     incident         in   the    village,             still<\/p>\n
     Vishwanath           was    shown    to be present           as     per      F.I.R.<\/p>\n
\n\n     Exh.80        and     that     shows      that there       is      tendency         of\n\n     involving           innocent    persons.         Merely because            it     was\n\n\n\n\n                                                          ::: Downloaded on - 09\/06\/2013 13:59:58 :::<\/span>\n                                           (    41   )\n\n\n\n\n     earliest          in time, we cannot say that F.I.R.                      was free\n\n     from emblishments.\n\n\n\n\n                                                                                  \n     34.          P.W.8-Kadji           has    stated        that       many        times\n\n\n\n\n                                                          \n     relatives         had     tried      to     intervene      in      the       dispute\n\n     between       PW1-Yashwant, Devidas on one side and accused\n\n\n\n\n                                                         \n     No.1     Ananda         on     the other.      Other      sons      of       accused\n\n     No.1-Ananda         were not ready to give share to                       Yashwant\n\n     and     Devidas.             5-6   months      prior      to      the     incident\n\n\n\n\n                                              \n<\/pre>\n
     Dipchand, Narayan, Shivlal and P.W.8-Kadji had gone to<\/p>\n
     the<\/p>\n
     to<\/p>\n
             house of Ananda for persuading him to give<\/p>\n
            Yashwant and Devidas as per their demand.\n<\/p>\n
                                                                                    share<\/p>\n
                                                                                At that<\/p>\n
     time Ananda in clear terms refused to give their share<\/p>\n
     and said that they should knock the doors of Court and<\/p>\n
     at     any    cost he would not allow partition.                        So     while<\/p>\n
     appreciating            the    evidence,       it   can      be     noted          that<\/p>\n
     P.W.1-Yashwant           and       P.W.8-Kadji were not law                abiding<\/p>\n
     persons.           They were ready to take law in their                        hands<\/p>\n
     and     we    have       to consider whether conviction                      can    be<\/p>\n
     passed        on        their       evidence        without         independent<\/p>\n
     corroboration.<\/p>\n
\n\n\n\n\n\n     35.          So    far as cross-examination of P.W.8-Kadji is\n\n     concerned,         it is stated that there were two heaps                           in\n\n     which building material was unloaded.                        One heap was of\n\n\n\n\n                                                          ::: Downloaded on - 09\/06\/2013 13:59:58 :::<\/span>\n                                              (     42   )\n\n\n\n\n     bricks       and another was of Mud and they were 1-2                                feet\n\n     away     from       the        door of accused No.1-Ananda.                      It     is\n\n\n\n\n                                                                                      \n     argued       before us that no such heaps were shown in the\n\n     spot     panchanama.               So, in the spot panchanama                    entire\n\n\n\n\n                                                              \n     truth       was     not brought on record.                  According to             this\n\n     witness, appellant-Pandit ran for a distance of                                    20-25\n\n\n\n\n                                                             \n     feet     with bucket and burning torch in his hand before\n\n     he       threw           liquid        on the injured.               This      witness\n\n     further       said        that in one hand             appellant-Pandit               was\n\n\n\n\n                                                \n     holding       of        bucket        chain    and threw         liquid         on     the\n\n     victims.\n\n     appellant-Pandit\n                        Then\n                              ig   he      said that on        throwing\n\n<\/pre>\n
                                    kept the bucket on the ground and by
\n                                                                                    liquid,<\/p>\n
     his left hand he threw the burning torch on the victims.\n<\/p>\n
     It     is     further          said     that after        fire,        the      victims<\/p>\n
     started       running helter – skelter to save their lives.\n<\/p>\n
     Yashwant          and     Shivlal        came towards the              place       where<\/p>\n
     P.W.8-Kadji             was    standing.           Omissions         were      brought<\/p>\n
     regarding          how carts were brought and being taken away<\/p>\n
     after       unloading.          Omission was brought on record that<\/p>\n
     he      did        not        state      before        police      that         accused<\/p>\n
     No.4-Milind was having stick in his hand.\n<\/p>\n
     36.         Last         eye witness P.W.14-Sarla Nandu Patil                           is<\/p>\n
     examined at Exh.165.                  She was not believed even by the<\/p>\n
     Trial       Court.            In para 66 of the judgment                  the        Trial<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span>
\n                                           (    43    )<\/p>\n
     Court     observed       that she must not be an                   eye-witness.\n<\/p>\n
     Sarla     Patil is married daughter of deceased Dipchand.\n<\/p>\n
     She said that at the time of incident she was studying<\/p>\n
     D.Ed.      at     Javhar,       Dist.       Thane.      She      had      come      to<\/p>\n
     Chhadwel.         On 12.04.1992, she was present in                        kitchen<\/p>\n
     room     and was cooking.            At that time she noticed                    that<\/p>\n
     appellant-Pandit          was    holding a steel bucket                    in     one<\/p>\n
     hand and a burning torch in another.                       On that day four<\/p>\n
     bullock     carts       were brought to the house                   of     accused<\/p>\n
     No.1.      They were loaded with bricks, stones, sand and<\/p>\n
     mud.\n<\/p>\n
               Among those bullock carts one was of her father<\/p>\n
     and others were of Narayan, Shivlal and Ramdas.                                Those<\/p>\n
     bullock     carts were unloaded in front of the house                               of<\/p>\n
     accused     No.1        and three bullock carts were                     about      to<\/p>\n
     return     and forth bullock cart was behind those                              three<\/p>\n
     bullock     carts.         Dipchand,           Nanabhau,       Yashwant          were<\/p>\n
     going on foot by the side of bullock cart.                            So it is a<\/p>\n
     story     different       from       one told by          other       witnesses.\n<\/p>\n
     Witness         Sarla     further        stated       that       as      she      saw<\/p>\n
     appellant-Pandit          coming with steel bucket and                       torch.\n<\/p>\n
     She came on the platform of the house and at that time<\/p>\n
     appellant-Pandit threw kerosene mixed with petrol from<\/p>\n
     the     bucket        towards bullock cart which was driven                         by<\/p>\n
     Shivlal.         It     fell    on       the    person     of      Shivlal        and<\/p>\n
     bullock.         As     a result there was big fire.                     She     gave<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span>
\n                                              (     44   )<\/p>\n
     call     to her brother Subhash, who came out from                                 their<\/p>\n
     house.         So,     this shows that Subhash Dipchand was                             at<\/p>\n
     his     house        and     not       with    the      injured        as     told      by<\/p>\n
     P.W.5-Devidas.              It is further stated that                     thereafter<\/p>\n
     fire     was       extinguished.            In cross-examination                 it     is<\/p>\n
     brought on record that on 12.04.1992 at 9.00 a.m.                                     she<\/p>\n
     came     out of the house from kitchen on hearing hue and<\/p>\n
     cry and at that time she saw that her father Dipchand,<\/p>\n
     uncle        Shivlal and Narayan and Yashwant were on                              fire.\n<\/p>\n
     So, this admission in para 8 shows that she was not an<\/p>\n
     eye witness.\n<\/p>\n
     she     did<\/p>\n
                            Omission was also brought on record that<\/p>\n
                        not state that when she was present                         in      the<\/p>\n
     kitchen        room,        she noticed appellant No.5 carrying                           a<\/p>\n
     steel        bucket        and     a    burning        torch     and      proceeding<\/p>\n
     towards        Eastern        side.         She was also confronted                   with<\/p>\n
     portion        marked        “A”       in     statement         before         Police.\n<\/p>\n
     Contradiction           is regarding this witness stating                            that<\/p>\n
     it     was     accused           No.1-Ananda who          was      running          after<\/p>\n
     bullock        cart        holding bucket and burning torch.                           She<\/p>\n
     was     also confronted with portion marked “B” which                                   is<\/p>\n
     to     the effect that Subhash was standing on Ota.                                    So,<\/p>\n
     there        was     no question of calling Subhash.                          She      was<\/p>\n
     further        confronted          with       portion         marked        “C”       from<\/p>\n
     statement          before police which shows that Subhash                             had<\/p>\n
     extinguished           fire on the person of                  appellant-Pandit.\n<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span><\/p>\n
                                       (   45   )<\/p>\n
     This    is vital admission because Dipchand – one of the<\/p>\n
     deceased        was   father of the P.W.14-Sarla and                Subhash<\/p>\n
     and    if they had seen Pandit actually setting fire                         to<\/p>\n
     Dipchand        and others, Subhash would not have helped in<\/p>\n
     extinguishing fire on the person of appellant-Pandit.\n<\/p>\n
     37.        In     this   case, the learned advocate                for     the<\/p>\n
     appellant relied upon case of Lakshmi Singh and others<\/p>\n
     etc.     V\/s.         State of Bihar, AIR 1976          S.C.2263.            In<\/p>\n
     that case in para 11 following law is laid down so far<\/p>\n
     as    non-explanation
\n                            ig   of   injuries<\/p>\n
     accused by the prosecution is concerned.\n<\/p>\n
                                                    on     the      person        of<\/p>\n
              “It seems to us that in a murder case, the
\n              non-explanation of the injuries sustained by
\n              the   accused at about     the time of    the
\n              occurrence or in the course of altercation is<\/p>\n
              a very important circumstances from which the
\n              Court can draw the following inferences:\n<\/p>\n
              (1)     That the prosecution has supressed the
\n              genesis and the origin of the occurrence and
\n              has thus not presented the true version;\n<\/p>\n
              (2)     that the witness who have denied the
\n              presence of the injuries on the person of the
\n              accused are lying on a most material point and
\n              therefore their evidence is unreliable;\n<\/p>\n
              (3)     that in case there      is a defence
\n              version which explains the injuries on the<\/p>\n
              person of the accused it is rendered probable
\n              so as to throw doubt on the prosecution case.
\n              The omission on the part of the prosecution to
\n              explain the injuries on the person of the
\n              accused assumes much greater importance where
\n              the   evidence consists of     interested   or<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span>
\n                                         (    46     )<\/p>\n
                inimical witnesses or where the defence gives
\n                a version which competes secution one. …….
\n                ……………………………………….
\n                We must hasten to add that as held by this<\/p>\n
                Court in the State of Gujarat V\/s.         Bai
\n                Fatima, Criminal Appeal No.67 of 1971 decided
\n                on March 19,1975 = (Reported in AIR 1975 SC<\/p>\n
                1478)    there  may be     cases   where   the
\n                non-explanation   of the    injuries by    the
\n                prosecution may not affect the prosecution
\n                case. This principle would obviously apply to
\n                cases where the injuries sustained by the<\/p>\n
                accused are minor and superficial or where the
\n                evidence    is  so clear    and   cogent,   so
\n                independent and disinterested, so probable,
\n                consistent and credit worthy, that it far
\n                outweights the effect of the omission on the
\n                part of the prosecution      to explain    the<\/p>\n
                injuries.”\n<\/p>\n
     38.        It<\/p>\n
                       is argued before us that in this case                           the<\/p>\n
     prosecution           witnesses particularly eye witnesses,                         so<\/p>\n
     also     three        deceased     in     their       dying         declarations<\/p>\n
     nowhere       explained         injuries on        appellant-Pandit               and<\/p>\n
     accused         No.4-Milind.           They        were     having          serious<\/p>\n
     injuries        as can be seen from evidence of Dr.                          Bhalde<\/p>\n
     at     Exh.205.        It is argued that inference may be drawn<\/p>\n
     that     the prosecution has supressed genesis and origin<\/p>\n
     of occurrence and thus not presented true version.                                  It<\/p>\n
     is     also     said        that this probabalises             defence         story<\/p>\n
     suggested        to     P.W.1-Yashwant and P.W.5-Devidas.                         The<\/p>\n
     witnesses        examined        in this case are            all      interested<\/p>\n
     witnesses.            They     were inimical to the appellant                     and<\/p>\n
     other     accused           persons.     The        story      is     inherently<\/p>\n
     improbable.            It     is difficult to visualise                 a    person<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span>
\n                                               (    47     )<\/p>\n
     holding a bucket containing kerosene mixed with petrol<\/p>\n
     in     one hand and a burning torch in other and                                 running<\/p>\n
     for     a distance of 30 – 40 feet and as many as as                                   six<\/p>\n
     witnesses          getting          injured and the spot                of      incident<\/p>\n
     being     only          of 3 feet x 3 feet, when it                       is    admitted<\/p>\n
     that     after          sustaining           burns       the    injured          started<\/p>\n
     running       here and there.                 It is also pointed out                  that<\/p>\n
     star     witness             P.W.1-Yashwant who was injured, in                        his<\/p>\n
     first F.I.R.             Exh.80 has falsely roped in nine persons<\/p>\n
     as     accused.          On the basis of statements of witnesses,<\/p>\n
     Ultimately,<\/p>\n
     the charge-sheet came to be filed against six persons.\n<\/p>\n
                             some       evidence        was   found        against         only<\/p>\n
     appellant-Pandit.                  It is argued before this Court that<\/p>\n
     evidence          is     far       from satisfactory.               The      truth     and<\/p>\n
     falsehood          is so mixed up that unless Court constructs<\/p>\n
     a      new        case        it    is       difficult         to     explain          all<\/p>\n
     circumstances.\n<\/p>\n
     39.          We        may     refer to following portion                      from    the<\/p>\n
     case of Lakshmi Singh (Supra) :-\n<\/p>\n
                  “16.     ………………………………
\n                  Where    all the witnesses     enter   into    a<\/p>\n
                  conspiracy to implicate five innocent persons
\n                  in a murder case, then the backbone of the
\n                  prosecution is broken, and       it would     be
\n                  difficult for the Court to rely on such
\n                  evidence    to   convict a    single   accused,
\n                  particularly when the prosecution does not<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span>
\n                                            (     48      )<\/p>\n
                give any explanation for the grievous and
\n                other serious injuries on       the person of
\n                Dasrath Singh. This is a case where it is not
\n                possible to disengage the truth from falsehood<\/p>\n
                to sift the grain from the chaff. The truth
\n                and    falsehood are so inextricably      mixed
\n                together that it is difficult to separate<\/p>\n
                them.    Indeed if one tries to do so, it will
\n                amount to reconstructing a new case for the
\n                prosecution which cannot be done in a criminal
\n                case.”\n<\/p><\/blockquote>\n
     40.        In       this case also same situation has                          arisen.\n<\/p>\n
     It     is unfortunate that as many as three persons                                 have<\/p>\n
     died.         Definitely       it     is        a   case     where         explosive<\/p>\n
     inflammable           liquid    was used which ultimately                       caused<\/p>\n
     burn<\/p>\n
             injuries to several persons and caused death                                   of<\/p>\n
     three of them.           But after giving anxious consideration<\/p>\n
     to     all circumstances, in our opinion, it is difficult<\/p>\n
     to     uphold conviction of appellant-Pandit.                              Witnesses<\/p>\n
     examined        are     not     trustworthy.            They      changed         their<\/p>\n
     version       from      time     to        time.        There       are      material<\/p>\n
     improvements,           omissions,          contradictions.              The      dying<\/p>\n
     declarations           are also not free from doubt.                       The dying<\/p>\n
     declarations at Exhs.               261 to 263 as we have discussed<\/p>\n
     earlier       are      not     consistent           with     the      F.I.R.         The<\/p>\n
     possibility of they being result of tutoring cannot be<\/p>\n
     ruled     out.         It     may     be    noted       that       as     per     dying<\/p>\n
     declaration at Exhs.261 to 263 recorded on 12.04.1992,<\/p>\n
     at      the      exhortation               of       accused           No.1-Ananda.<\/p>\n
\n\n     Appellant-Pandit             had thrown kerosene on the person of\n\n\n\n\n                                                             ::: Downloaded on - 09\/06\/2013 13:59:58 :::<\/span>\n                                      (    49    )\n\n\n\n\n     injured,        whereas accused No.4-Milind who was                   holding\n\n     torch     set     the    injured on fire.        This story           is     not\n\n\n\n\n                                                                             \n<\/pre>\n
     believed by the Trial Court and it is not supported by<\/p>\n
     the     prosecution witnesses.            Similarly, we are of               the<\/p>\n
     opinion        that subsequent dying declarations at Exh.258<\/p>\n
     and 259 must also be result of tutoring.\n<\/p>\n
     41.        Now it is well settled that where parties come<\/p>\n
     to     Court     with falsehood or half truth, though                     Court<\/p>\n
     has     duty to sift truth from falsehood, sometime truth<\/p>\n
     and<\/p>\n
     becomes
\n             falsehood
\n                         ig  are<\/p>\n
                     impossible
\n                                   so ingenoniously<\/p>\n
                                   to     separate
\n                                                             mixed<\/p>\n
                                                          them.         In
\n                                                                          that      it<\/p>\n
                                                                                  such<\/p>\n
     situation       Court is left with no option but to discard<\/p>\n
     such     evidence       and   give    benefit      of     doubt         to   the<\/p>\n
     accused.         In the case of Jamuna Chaudhari and                    others<\/p>\n
     V\/s.      State     of Bihar, AIR 1974          S.C.1822,          following<\/p>\n
     observations are made:-\n<\/p>\n
                “12.    As neither the prosecution nor the<\/p>\n
                defence have, in the case before us, come out
\n                with the whole and unvarnished truth, so as to
\n                enable the Court to judge where the rights and
\n                wrongs of the whole       incident or set of
\n                incidents lay or how one or more incidents
\n                took place in which so many persons, including
\n                Laldhari and Ramanandan, were injured, Courts<\/p>\n
                can only try to       guess or conjecture to
\n                decipher the truth if possible. This may be
\n                done, within limits to determine whether any
\n                reasonable doubt emerges on any point under
\n                consideration    from     proved   facts   and
\n                circumstances of the case.”\n<\/p><\/blockquote>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span><\/p>\n
                                          (    50    )<\/p>\n<\/blockquote>\n
     42.        In this case each piece\/item of evidence right<\/p>\n
     from    the F.I.R.            (Exh.80) is inconsistent with                   other<\/p>\n
     evidence.         It appears that there are improvements                           at<\/p>\n
     every stage and this can happen, not merely because of<\/p>\n
     zeal    to      include        as   many       persons         as   accused        as<\/p>\n
     possible,        but     when there is desire to                conceal         some<\/p>\n
     material        part     of     the truth which           is    inconvenient.\n<\/p><\/blockquote>\n
     Otherwise, there is no explanation why there should be<\/p>\n
     so much variance in the F.I.R., dying declarations and<\/p>\n
     depositions<\/p>\n
     spot    of incident;\n<\/p>\n
                        on record;           why there should be change of<\/p>\n
                                    and in role attributed to                  various<\/p>\n
     accused persons and in other details.In our opinion it<\/p>\n
     is not safe to base conviction on evidence on record.\n<\/p>\n
     43.        In     the     result though it is unfortunate                       that<\/p>\n
     three    persons         have lost their lives and one                    of     the<\/p>\n
     witnesses        have     sustained burn injury as a result                        of<\/p>\n
     the     incident, in an attempt to involve even                          innocent<\/p>\n
     persons,         truth         is    mixed         with        falsehood           so<\/p>\n
     inextricably,           that now it has become difficult for us<\/p>\n
     to     disengage truth from falsehood.                    In our considered<\/p>\n
     view,    there         is no alternate but to give                  benefit        of<\/p>\n
     doubt    to      the     appellant.           In the      result,        we     pass<\/p>\n
     following order:-\n<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span><\/p>\n
                                     (    51   )\n\n\n\n\n     i.         Criminal    Appeal No.553 of 2006 is allowed and\n\n\n\n\n                                                                          \n     conviction     and sentence of the appellant for                   offence\n\n     punishable     under Section 302 and 307, as recorded                       by\n\n\n\n\n                                                  \n     the   Ist    Ad-hoc Additional Sessions Judge,                  Dhule       by\n\n     judgment dated 24.07.2006, in Sessions Case No.                        61 of\n\n\n\n\n                                                 \n<\/pre>\n
     1992 is hereby quashed and set aside and the appellant<\/p>\n
     is acquitted of the offences with which he was charged<\/p>\n
     and   convicted.       Fine,       if paid by the        appellant          be<\/p>\n
     refunded     to him.    Since the appellant is in jail,                     he<\/p>\n
     be released forthwith if not wanted in any other case.\n<\/p>\n
     ii.        Criminal Appeal No.763 of 2006 is dismissed.\n<\/p>\n
     [P.R. BORKAR,J.]                                [P.V. HARDAS,J.]<\/p>\n
     snk\/2008\/OCT08\/crap553.06<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 13:59:58 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Age 43 Years vs The State Of Maharashtra on 18 October, 2008 Bench: P.V. Hardas, P. R. Borkar IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.553 OF 2006 WITH CRIMINAL APPEAL NO.763 OF 2006 * * * * * CRIMINAL APPEAL NO.553 OF 2006 Pandit s\/o. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-17448","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nAge 43 Years vs The State Of Maharashtra on 18 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/age-43-years-vs-the-state-of-maharashtra-on-18-october-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Age 43 Years vs The State Of Maharashtra on 18 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/age-43-years-vs-the-state-of-maharashtra-on-18-october-2008\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2008-10-17T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2016-08-21T05:41:06+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"54 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/age-43-years-vs-the-state-of-maharashtra-on-18-october-2008#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/age-43-years-vs-the-state-of-maharashtra-on-18-october-2008\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"Age 43 Years vs The State Of Maharashtra on 18 October, 2008\",\"datePublished\":\"2008-10-17T18:30:00+00:00\",\"dateModified\":\"2016-08-21T05:41:06+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/age-43-years-vs-the-state-of-maharashtra-on-18-october-2008\"},\"wordCount\":8484,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"Bombay High Court\",\"High Court\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/age-43-years-vs-the-state-of-maharashtra-on-18-october-2008#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/age-43-years-vs-the-state-of-maharashtra-on-18-october-2008\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/age-43-years-vs-the-state-of-maharashtra-on-18-october-2008\",\"name\":\"Age 43 Years vs The State Of Maharashtra on 18 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\"},\"datePublished\":\"2008-10-17T18:30:00+00:00\",\"dateModified\":\"2016-08-21T05:41:06+00:00\",\"breadcrumb\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/age-43-years-vs-the-state-of-maharashtra-on-18-october-2008#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/age-43-years-vs-the-state-of-maharashtra-on-18-october-2008\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/age-43-years-vs-the-state-of-maharashtra-on-18-october-2008#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"Age 43 Years vs The State Of Maharashtra on 18 October, 2008\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"name\":\"Free Judgements of Supreme Court & High Court | Legal India\",\"description\":\"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.\",\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"alternateName\":\"Free judgements of Supreme Court & High Court of India | Legal India\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/?s={search_term_string}\"},\"query-input\":{\"@type\":\"PropertyValueSpecification\",\"valueRequired\":true,\"valueName\":\"search_term_string\"}}],\"inLanguage\":\"en-US\"},{\"@type\":\"Organization\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\",\"name\":\"Judgements of Supreme Court & High Court | Legal India\",\"alternateName\":\"Legal India\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"logo\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"contentUrl\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"width\":512,\"height\":512,\"caption\":\"Judgements of Supreme Court & High Court | Legal India\"},\"image\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\"},\"sameAs\":[\"https:\\\/\\\/www.facebook.com\\\/LegalindiaCom\\\/\",\"https:\\\/\\\/x.com\\\/Legal_india\"]},{\"@type\":\"Person\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\",\"name\":\"Legal India Admin\",\"image\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"url\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"contentUrl\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"caption\":\"Legal India Admin\"},\"sameAs\":[\"https:\\\/\\\/www.legalindia.com\",\"https:\\\/\\\/x.com\\\/legaliadmin\"],\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/author\\\/legal-india-admin\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"Age 43 Years vs The State Of Maharashtra on 18 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.legalindia.com\/judgments\/age-43-years-vs-the-state-of-maharashtra-on-18-october-2008","og_locale":"en_US","og_type":"article","og_title":"Age 43 Years vs The State Of Maharashtra on 18 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India","og_url":"https:\/\/www.legalindia.com\/judgments\/age-43-years-vs-the-state-of-maharashtra-on-18-october-2008","og_site_name":"Free Judgements of Supreme Court & High Court | Legal India","article_publisher":"https:\/\/www.facebook.com\/LegalindiaCom\/","article_published_time":"2008-10-17T18:30:00+00:00","article_modified_time":"2016-08-21T05:41:06+00:00","og_image":[{"width":512,"height":512,"url":"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1","type":"image\/jpeg"}],"author":"Legal India Admin","twitter_card":"summary_large_image","twitter_creator":"@legaliadmin","twitter_site":"@Legal_india","twitter_misc":{"Written by":"Legal India Admin","Est. reading time":"54 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"Article","@id":"https:\/\/www.legalindia.com\/judgments\/age-43-years-vs-the-state-of-maharashtra-on-18-october-2008#article","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/age-43-years-vs-the-state-of-maharashtra-on-18-october-2008"},"author":{"name":"Legal India Admin","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea"},"headline":"Age 43 Years vs The State Of Maharashtra on 18 October, 2008","datePublished":"2008-10-17T18:30:00+00:00","dateModified":"2016-08-21T05:41:06+00:00","mainEntityOfPage":{"@id":"https:\/\/www.legalindia.com\/judgments\/age-43-years-vs-the-state-of-maharashtra-on-18-october-2008"},"wordCount":8484,"commentCount":0,"publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"articleSection":["Bombay High Court","High Court"],"inLanguage":"en-US","potentialAction":[{"@type":"CommentAction","name":"Comment","target":["https:\/\/www.legalindia.com\/judgments\/age-43-years-vs-the-state-of-maharashtra-on-18-october-2008#respond"]}]},{"@type":"WebPage","@id":"https:\/\/www.legalindia.com\/judgments\/age-43-years-vs-the-state-of-maharashtra-on-18-october-2008","url":"https:\/\/www.legalindia.com\/judgments\/age-43-years-vs-the-state-of-maharashtra-on-18-october-2008","name":"Age 43 Years vs The State Of Maharashtra on 18 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/#website"},"datePublished":"2008-10-17T18:30:00+00:00","dateModified":"2016-08-21T05:41:06+00:00","breadcrumb":{"@id":"https:\/\/www.legalindia.com\/judgments\/age-43-years-vs-the-state-of-maharashtra-on-18-october-2008#breadcrumb"},"inLanguage":"en-US","potentialAction":[{"@type":"ReadAction","target":["https:\/\/www.legalindia.com\/judgments\/age-43-years-vs-the-state-of-maharashtra-on-18-october-2008"]}]},{"@type":"BreadcrumbList","@id":"https:\/\/www.legalindia.com\/judgments\/age-43-years-vs-the-state-of-maharashtra-on-18-october-2008#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/www.legalindia.com\/judgments\/"},{"@type":"ListItem","position":2,"name":"Age 43 Years vs The State Of Maharashtra on 18 October, 2008"}]},{"@type":"WebSite","@id":"https:\/\/www.legalindia.com\/judgments\/#website","url":"https:\/\/www.legalindia.com\/judgments\/","name":"Free Judgements of Supreme Court & High Court | Legal India","description":"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.","publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"alternateName":"Free judgements of Supreme Court & High Court of India | Legal India","potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/www.legalindia.com\/judgments\/?s={search_term_string}"},"query-input":{"@type":"PropertyValueSpecification","valueRequired":true,"valueName":"search_term_string"}}],"inLanguage":"en-US"},{"@type":"Organization","@id":"https:\/\/www.legalindia.com\/judgments\/#organization","name":"Judgements of Supreme Court & High Court | Legal India","alternateName":"Legal India","url":"https:\/\/www.legalindia.com\/judgments\/","logo":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/","url":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","contentUrl":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","width":512,"height":512,"caption":"Judgements of Supreme Court & High Court | Legal India"},"image":{"@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/"},"sameAs":["https:\/\/www.facebook.com\/LegalindiaCom\/","https:\/\/x.com\/Legal_india"]},{"@type":"Person","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea","name":"Legal India Admin","image":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","url":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","contentUrl":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","caption":"Legal India Admin"},"sameAs":["https:\/\/www.legalindia.com","https:\/\/x.com\/legaliadmin"],"url":"https:\/\/www.legalindia.com\/judgments\/author\/legal-india-admin"}]}},"modified_by":null,"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_likes_enabled":true,"jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/17448","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/comments?post=17448"}],"version-history":[{"count":0,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/17448\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/media?parent=17448"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/categories?post=17448"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/tags?post=17448"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}