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2014 DIGILAW 250 (BOM)

Gajraj Ramswarup Kharare v. State of Maharashtra

2014-01-31

A.S.GADKARI, P.V.HARDAS

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Judgment 1. The Appellant-Original Accused No.1 who stands convicted for an offence punishable under Section 302 of Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.5000/-, in default of which to undergo further RI for 1 year, by the Additional Sessions Judge, Pune by judgment dated 21 June 2013 in Sessions Case No.228 of 2012, by this Appeal questions the correctness of the sentence. 2. The facts, as are necessary for the decision of this appeal, may briefly be stated thus: (i) PW-5 ASI Vilas Patil who was attached to Khadaki police station was informed on 2.1.1996 at about 10.20 am that one Mangesh Vijay Pilley had sustained burns and was referred to Sassoon hospital. Accordingly, intimation vide Exhibit 16 was sent to the Special Executive Magistrate- PW-1 Anirudhha Sasane for recording dying declaration. (ii) PW-1 Anirudhha Sasane who was appointed as Special Judicial Magistrate had received the intimation at Exhibit 16 from the said police station for recording the dying declaration of injured Mangesh. Accordingly, PW-1 Sasane, Special Judicial Magistrate proceeded to Sassoon hospital. He noticed that injured Mangesh admitted was in Burn Ward No.27. He requested the Medical Officer to ascertain if injured Mangesh was in fit condition to give his statement. The Medical Officer an answering in the affirmative, he recorded the dying declaration of Mangesh at Exhibit 17. In the said dying declaration, Mangesh has stated that on the day of incident he had gone to answer call of nature in the morning, when his friend Dalya poured kerosene on him and set him ablaze with matchstick, because of previous enmity. Mangesh further stated that at that time wife of Dalya was present. The said dying declaration is at Exhibit 17. (iii) After PW-1 Sasane recorded the dying declaration, the said dying declaration was handed over to PW-5 ASI Vilas Patil. On the basis of the said dying declaration, API Shinde lodged his report at Exhibit 32. Accordingly, an offence came to be registered against the appellant. It appears that during trial, API Shinde was not available as he had expired. No other Police Officer had been examined to prove the investigation which was carried out. On the basis of the said dying declaration, API Shinde lodged his report at Exhibit 32. Accordingly, an offence came to be registered against the appellant. It appears that during trial, API Shinde was not available as he had expired. No other Police Officer had been examined to prove the investigation which was carried out. (iv) On committal of the case to the Court of Sessions, the Trial Court vide Exhibit 2 framed charge against the appellant and accused no.2 for an offence punishable under Section 302 read with 34 of Indian Penal Code. The accused denied their guilt and came to be tried. Prosecution in order to prove the case examined 5 witnesses. The defence of the appellant was of denial. The Trial Court, upon appreciation of evidence of the prosecution, convicted and sentenced the appellate as aforestated, while acquitted the original accused no.2. 3. It appears that Criminal Application No.1585 of 2013 was filed by the appellant praying for suspension of his substantive sentence and his release on bail. The aforesaid application was withdrawn by the learned Counsel for the appellant. This Court directed that R & P be called for and dispensed with preparation of formal paper-book and directed to list the appeal in the week commencing from 6.1.2014. Accordingly, though this appeal is of the year 2013, it has been listed before us for hearing. 4. In order to effectively deal with the submissions advanced before us, it would be useful to refer to the evidence of the prosecution witnesses. 5. PW-1 Sasane deposes about recording of the dying declaration of injured Mangesh at Exhibit 17. In the dying declaration at Exhibit 17, deceased had made categorical statement that his friend Dalya whom deceased allegedly poured kerosene on him and set him ablaze. Prosecution has examined PW-2 Dagadu Bhalekar who states that deceased had made an oral dying declaration to him that Dadu had poured kerosene on him and had set him ablaze. PW-4 Shantabai Vijay Pilley the mother of deceased Mangesh states that deceased had made oral dying declaration to her about being set ablaze. 6. Prosecution has examined PW-2 Dagadu Bhalekar who states that deceased had made an oral dying declaration to him that Dadu had poured kerosene on him and had set him ablaze. PW-4 Shantabai Vijay Pilley the mother of deceased Mangesh states that deceased had made oral dying declaration to her about being set ablaze. 6. Thus from perusal of the testimony of the said witnesses, we find that in the dying declaration at Exhibit 17 deceased Mangesh has stated that his friend Dalya has set him ablaze while oral dying declaration' made to PW-2 Dagdu, Mangesh speaks about deceased Mangesh being set ablaze by one Dadu. PW-4 Shantabai does not refer to name of any person who set Mangesh ablaze. PW-4 Shantabai only deposes that deceased had stated that it was the accused who had set Mangesh ablaze. She also refers to an incident of 1.1.1996 wherein her son Mangesh had complained her that of Dalya has assaulted him and therefore Mangesh had lodged report with the police. At that time, Mangesh was accompanied to house of PW-4 Shantabai by one supervisor. 7. We therefore find that the prosecution has miserably failed in establishing that the accused is known by various aliases including “Dalya” and “Dadu”. In absence of any evidence which would connect the identity of the appellant as the same person who is referred in the dying declaration at Exhibit 17 as Dalya and in oral dying declaration made to PW-2 Dagdu as Dadu, conviction of the appellant is wholly unsustainable. In fact, PW-2 Dagdu has admitted in the cross-examination that one Dadu Birajdar and Dadu Shinde were also working at the said construction site. He has also admitted that there were several persons whose first name is Dadu and were working at site. 8. Prosecution thus utterly failed in establishing that the appellant who was known as Dalya or Dadu. What is the most disturbing are the observations made by the Trial Court at para-11 of the judgment. The Trial Court has referred to 161 statements of other witnesses who have not been examined by the prosecution and has read the contents of the 161 statements and arrived at finding that the appellant is known as “Dalya”. The aforesaid exercise is wholly impermissible in law. 9. The Trial Court has referred to 161 statements of other witnesses who have not been examined by the prosecution and has read the contents of the 161 statements and arrived at finding that the appellant is known as “Dalya”. The aforesaid exercise is wholly impermissible in law. 9. We therefore find that there is no evidence which would establish that the appellant who was known either as Dalya or as Dadu and had poured kerosene on Mangesh on the day of incident and had set him ablaze. The conviction of the appellant is wholly unsustainable and therefore the appeal filed by the appellant deserves to be allowed. 10. Accordingly, Criminal Appeal No. 698 of 2013 is allowed, and the conviction and sentence of the Appellant Original Accused No.1-Gajraj Ramswarup Kharare is hereby quashed and set aside, and acquitted him for an offence with which he was charged and convicted. Fine, if any paid, be refunded to him. 11. Since the Appellant-Original Accused No.1 is in jail, he be released forthwith, if not required in any other case.