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2014 DIGILAW 255 (BOM)

Apparao Rajaram Pund v. State of Maharashtra

2014-02-03

S.S.SHINDE, V.M.DESHPANDE

body2014
JUDGMENT V.M. Deshpande, J. 1. These two appeals are directed against the judgment and order of conviction, dated 11.4.2011, passed by the learned Sessions Judge, Parbhani, in Sessions Trial No. 80 of 2008, by which learned Sessions Judge convicted the appellants in both the appeals, principally for the offence punishable under Section 302 r/w Section 149 of the Indian Penal Code and sentenced each of them to suffer imprisonment for life and to pay fine of Rs. 10,000/-. The learned Judge of the Court below has also convicted the appellants in both the appeals for the offences punishable under Sections 147 and 148 and directed that the appellants shall serve the jail sentence for one year in respect of each of the offence and each shall pay a fine amount of Rs.5,000/- in respect of Sections 147 and 148 of the Indian Penal Code. The learned Judge also convicted all the appellants for the offence punishable under Section 324 r/w Section 149 of the Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for one year and to pay fine amount of Rs.1,000/- each. The learned Judge further convicted all the appellants for the offence punishable under Section 436 r/w Section 149 of the Indian Penal Code and directed that each of the appellants shall serve rigorous imprisonment for five years and shall pay an amount of Rs.2,000/- towards payment of fine. The appellants were also convicted for the offence punishable under Section 440 r/w Section 149 and each of them was directed to suffer rigorous imprisonment for three years and to pay fine amount of Rs.1,000/-. The appellants were also convicted for the offence punishable under Section 448 r/w Section 149 of the Indian Penal Code and each of the appellants was sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs. 500/-. The learned Judge further convicted the appellants for the offence punishable under Section 449 r/w Section 149 of the Indian Penal Code and on that count, each of the appellants was sentenced to suffer rigorous imprisonment for three years and to pay fine amount of Rs.5000/-. Needless to mention, the learned Judge also found that if the appellants fail to deposit the fine amount, they shall suffer the jail sentence for various period, as indicated in the operative part of the judgment. 2. Needless to mention, the learned Judge also found that if the appellants fail to deposit the fine amount, they shall suffer the jail sentence for various period, as indicated in the operative part of the judgment. 2. In Criminal Appeal No. 215 of 2011, appellant no.1-Apparao Pund is the original accused no.1; whereas appellant no.2-Achyut is the original accused no.3. So far as Criminal Appeal No. 225 of 2011 is concerned, it is filed by original accused no.2 Gopal Pund, accused no.4 Sachin Pund, accused no.5 Balu Pund, accused no. 6 Sandeep @ Sanjay Pund, accused no. 8 Motiram Pund, accused no. 9 Rustum Pund and accused no.10 Gopinath Pund. Original accused no. 7 Saheb Gopal Pund was acquitted by the learned Judge of the court below for all the offences with which he was charged. 3. The appellants hereinafter will be referred to in the present judgment as per their position before the trial court. 4. The prosecution case, as it was unfolded during the trial through the prosecution witnesses and also on the basis of two dying declarations recorded during the course of the investigation, in nut shell, is as under:- Apparao Pund and Madhavrao Renge-the husband of deceased Savitrabai were friends for pretty long time. However, it appears that the discord amongst their friendship started due to the fact that Madhavrao Pund formed his own panel to contest the election of Grampanchayat and in the Grampanchayat elections, the panel led by accused no.1-Apparao Pund lost the said election and eventually Apparao Pund lost his post as Sarpanch. 5. It could be further noticed that about 25 to 30 years back, Madhavrao Pund purchased two gunthas of land from Apparao Pund and has erected a cattle shed. It appears from the evidence on record that the sale deed in respect of the land purchased by Madhavrao was not executed in his favour by Apparao. 6. It appears that after losing the elections, Apparao started pressurizing Madhavrao, who was examined as Prosecution Witness No.3 that Madhavrao shall vacate the land and shall hand over the cattle shed. It appears that though there are no exact dates, on which the threats were extended to Madhavrao that if the land and cattle shed is not vacated, he will have to face the dire consequences. 7. It appears that 15.1.2008 was an unfortunate day for Madhavrao Renge and his family. It appears that though there are no exact dates, on which the threats were extended to Madhavrao that if the land and cattle shed is not vacated, he will have to face the dire consequences. 7. It appears that 15.1.2008 was an unfortunate day for Madhavrao Renge and his family. The prosecution case further proceeds that on the said date, the appellants/accused, at about 7.30 to 8.00 a.m. armed with the deadly weapons, barged in the cattle shed and they started removing iron sheets fixed on the roof of the cattle shed. PW3-Madhavrao requested not to remove the iron sheets. In spite of request, the appellants were removing the tin sheets, and therefore, PW3-Madhavrao attempted to stop them from removing the said sheets. At the same time, his wife Savitrabai (who lost her life in the said incident) and their son Uddhav, who was examined as Prosecution Witness No. 5, attempted to intervene in order to prevent the appellants from removing the tin sheets. At that time, accused no.1 Apparao, accused no.4 Sachin and accused no.3 Achyut beat PW3-Madhavrao with fist blows and leg kicks and he was thrown out of cattle shed. 8. The prosecution case further states that at that time Savitrabai entered in the cattle shed and prayed that sheets should not be removed. The prosecution case further proceeds that accused no.1 Apparao, who was possessing bottle containing kerosene, splashed the same in the entire cattle shed and then accused no.4 Sachin set cattle shed on fire, due to which Savitrabai also caught fire and when PW3-Madhavrao attempted to enter in the cattle shed, accused no.2 Gopal inflicted an axe blow on the head of Madhavrao, due to which, Madhavrao sustained bleeding injury. It is further case of the prosecution that Madhavrao gave call for help and one Navnath reached Savitrabai, after wrapping her in a piece of cloth, in the hospital. The record shows that Savitrabai was admitted in the hospital on 15.1.2008 at about 10.00 a.m. 9. The investigating agency recorded the statement of Madhavrao on 15.1.2008. The same was treated as complaint of Madhavrao. It is at Exh. 47 on record. 10. PW2-Mohammad Bashir Shaikh Umer, who was attached to Nanal Peth police station, on 15.1.2008 was on his duty in police chouky attached to Civil Hospital, Parbhani. The investigating agency recorded the statement of Madhavrao on 15.1.2008. The same was treated as complaint of Madhavrao. It is at Exh. 47 on record. 10. PW2-Mohammad Bashir Shaikh Umer, who was attached to Nanal Peth police station, on 15.1.2008 was on his duty in police chouky attached to Civil Hospital, Parbhani. He received intimation of Medico Legal Case and also an intimation that a lady, who has sustained burns, is admitted in the hospital and he should record her statement immediately. Accordingly, PW2-Mohd. Bashir went to the Medical Officer and disclosed his intention to record the statement of injured. The doctor accompanied him in the ward. Then doctor asked certain questions to the patient. Mohd. Bashir was informed by the doctor that patient was conscious and was in a position to give her statement, and accordingly, her statement was recorded by PW2-Mohd. Bashir. The statement of injured Savitrabai, so recorded by PW2-Mohd. Bashir, is on record at Exh. 45. 11. After recording of the statement of injured Savitrabai (Exh.45), Kishor Achyut Deshmukh, Incharge Tahsildar of Parbhani, who is examined as Prosecution Witness No. 1, also visited the hospital, since he was intimated by Nanal Peth police station, requesting him to record dying declaration of Savitrabai. Accordingly, he visited the Civil Hospital, Parbhani. After making inquiry about the patient, he went to the concerned ward with the concerned Medical Officer. He requested the doctor to verify whether the patient was conscious and was in a position to give her statement. Thereupon, the doctor examined Savitrabai and verified that she was in a position to give her statement. Accordingly, the statement of Savitrabai was recorded by PW1-Kishor and the said statement is at Exh. 42 on the record. 12. PW16-Annasaheb Gholap, Assistant Police Inspector was attached to Daithana police station. He registered Crime No. 6 of 2008. He took over the investigation. On 15.1.2008, he arrested five accused. On 16.1.2008, the spot panchanama was drawn by him in presence of two panchas. From the spot, two pieces of green colour bangles, half burnt mangalsutra, half burnt Tulsi mal and one key entangled in the safety pin, iron pipe of one inch diameter and chilly powder were seized. Panchas put their signatures on the said panchanama. The said panchanama is at Exh.58. 13. From the spot, two pieces of green colour bangles, half burnt mangalsutra, half burnt Tulsi mal and one key entangled in the safety pin, iron pipe of one inch diameter and chilly powder were seized. Panchas put their signatures on the said panchanama. The said panchanama is at Exh.58. 13. The record further reveals that Savitrabai, who was battling for her life, ultimately succumbed to her burn injuries on 16.1.2008 at 6.15 a.m. Accordingly, the offence punishable under Section 302 of the Indian Penal Code was added. He arrested remaining accused. Accused persons, while in the custody, expressed their desire to produce the weapons, and accordingly, their statements were recorded and respective recoveries were made from the accused persons. The seized articles were sent to the Chemical Analyser at Aurangabad with covering letter. The office copy of the said covering letter is at Exh. 51. He also recorded supplementary statements of the witnesses. 14. After completion of the investigation, charge sheet was filed in the court of learned Magistrate and since the offence was exclusively triable by the court of Sessions, the learned Magistrate committed the case before the Sessions Court at Parbhani. 15. The learned Sessions Judge framed charge on 22.3.2010. It is at Exh. 27, which was read over and explained to all the accused. They pleaded not guilty and claimed to be tried. 16. The prosecution, in support of its case, placed reliance on the oral as well as the documentary evidence on record. In all sixteen witnesses were examined by the prosecution. 17. Amongst the documents, the prosecution heavily relies on two dying declarations, spot panchanama and recovery panchanamas, under which the weapons used in the offence were recovered. 18. After appreciating the evidence brought on record and on appreciation of the documentary evidence, the learned Sessions Judge vide judgment and order of conviction, dated 11.4.2011 convicted the accused persons as indicated in the earlier part of this judgment. 19. Being dissatisfied with the said judgment and order of conviction, the appellants approached this court and has filed the present two appeals as indicated in the earlier paragraph of the judgment. 20. 19. Being dissatisfied with the said judgment and order of conviction, the appellants approached this court and has filed the present two appeals as indicated in the earlier paragraph of the judgment. 20. We have heard Shri Joydeep Chatterjee, learned counsel in Criminal Appeal No. 215 of 2011 filed on behalf of accused no.1 Apparao and accused no.3 Achyut and we have also heard Shri Jadhavar, learned counsel who represents the appellants in Criminal Appeal No. 225 of 2011 in extenso. We have also heard learned A.P.P. Shri Suryawanshi appearing on behalf of the respondent/State. 21. According to the learned counsel for the appellants, the dying declarations (Exh.45 and Exh.42) cannot be relied upon to convict the appellants, in as much as according to them, the attending circumstances available on record, do not inspire confidence in respect of truthfulness and genuineness of these two dying declarations. In so far as the ocular evidence is concerned, the submissions of the learned counsel are that their testimonies, inter se, reflect variance on the material points. Further, their evidence suffers from omissions and contradictions, which go to the root of the matter. Apart from that, according to them, the witnesses are the close relatives of deceased Savitrabai, and therefore, they being interested witnesses, it is really unsafe to rely on their testimonies for reaching to the conclusion that the appellants are guilty of the offences for which they were charged. 22. Another plank of the argument of the learned counsel for the appellants was that it was never the intention on the part of any of the appellants/accused to cause the death of Savitrabai. According to them, the appellants at the most can be guilty of attempting to get the cattle shed in their possession from the possession of Madhavrao and during that process the unfortunate incident has happened, and therefore, the death of Savitrabai, according to them, is not a culpable homicide amounting to murder. According to them, the appellants at the most can be guilty of attempting to get the cattle shed in their possession from the possession of Madhavrao and during that process the unfortunate incident has happened, and therefore, the death of Savitrabai, according to them, is not a culpable homicide amounting to murder. It is further the submission of the learned counsel for the appellants that the learned Judge of the court below has erred in convicting the appellants under Section 302 of the Indian Penal Code with the aid of Section 149 of the Indian Penal Code, in as much as, according to them, there was no evidence brought on record by the prosecution in order to substantiate that the incriminating act was done to accomplish the object of unlawful assembly and it was within the knowledge of each of the member of the said unlawful assembly. Therefore, it was the contention of the learned counsel for the appellants that the learned trial court ought not to have convicted the appellants with the aid of Section 149 of the Indian Penal Code, apart from the fact that they ought not to have been convicted separately for the commission of the offence under Section 149 of the Indian Penal Code. 23. It was further contention of the learned counsel for the appellants, though very dimly, that the appellants were erroneously convicted for the other offences for which they were charged. 24. Per contra, the learned Additional Public Prosecutor supported the judgment and order of conviction passed by the learned Judge of the court below by pointing out that the appellants were found to be the members of unlawful assembly with the common object. It was his further submission that there is no evidence on record to even remotely suggest that Savitrabai was tutored. In that view of the matter, relying upon the two dying declarations on record along with the version of eye witnesses, the learned Judge of the court below has rightly found the appellants guilty. He further submits that the ocular evidence on the part of the prosecution is consistent one and the discrepancies and/or omissions, as found in their evidence, are minor in nature. However, the core of the prosecution case remained intact, and therefore, he submits for dismissal of both the appeals. 25. Firstly, we would like to examine the dying declarations. He further submits that the ocular evidence on the part of the prosecution is consistent one and the discrepancies and/or omissions, as found in their evidence, are minor in nature. However, the core of the prosecution case remained intact, and therefore, he submits for dismissal of both the appeals. 25. Firstly, we would like to examine the dying declarations. The first in point of time is the dying declaration recorded by PW2 Mohammad Bashir Shaikh Umer. The said dying declaration is at Exh. 45. If we scrutinize the evidence of PW2 Mohd. Bashir, it is clear that after reaching to the Civil Hospital, Parbhani, he went to the Medical Officer, namely PW11 Dr. Anjali More. According to PW2 Mohd. Bashir, PW11 Dr. Anjali put certain questions to the patient. Obviously, the said questions were put by her in order to ascertain about the consciousness and fitness of Savitrabai so as to give her statement as desired by PW2 Mohd. Bashir. PW2 Mohd. Bashir asserts in his evidence that he was told by PW11 Dr. Anjali that Savitrabai was conscious and was in a position to give her statement. This assertion made by PW2 Mohd. Bashir is corroborated by PW11 Dr. Anjali, who has deposed that she went to the burn ward along with the police and she examined Savitrabai. She verified the pulse rate and heart beats of Savitrabai. She found her heart rate and respiratory rate normal and Savitrabai was conscious and was in a position to give her statement, and therefore, she made an endorsement accordingly on the piece of paper whereon PW2 Mohd. Bashir was intending to record the statement of Savitrabai. The said endorsement is duly proved and it is at Exh.64. According to the evidence of PW2 Mohd. Bashir, he asked Savitrabai the cause of the burns sustained by her and to the said questions she gave replies, and accordingly, the dying declaration Exh.45 was recorded. From the perusal of dying declaration Exh.45, though it is clear that it is not in question and answer form, but from the evidence of PW2 Mohd. Bashir, it is clear that he put questions to Savitrabai, which were replied and those answers were reduced into writing as a statement of Savitrabai. In so far as putting questions to Savitrabai, there is no cross-examination on that point by the learned counsel for the appellants. 26. Bashir, it is clear that he put questions to Savitrabai, which were replied and those answers were reduced into writing as a statement of Savitrabai. In so far as putting questions to Savitrabai, there is no cross-examination on that point by the learned counsel for the appellants. 26. The perusal of the dying declaration (Exh. 45) clearly reveals that firstly when the accused persons were trying to remove the tin sheets, Savitrabai went there and she asserted that the premises belongs to her and why they were removing the tin sheets. Whereupon accused no.1 Apparao asserted that the premises belongs to him and at that time the other accused were present with Apparao. The dying declaration further discloses that PW1 Madhavrao, the husband of Savitrabai, was assaulted by axe blow and thereafter accused no.1 Apparao thrown Savitrabai on grass and it was set ablaze, due to which she received burn injuries. The dying declaration further discloses that when her son intervened in order to save her, the accused persons prevented and assaulted him. After dying declaration was recorded, PW11 Anjali again examined Savitrabai and she found that she was conscious. She gave an endorsement to that effect on the foot of Exh.42 and the said endorsement is duly proved at Exh.65. 27. The dying declaration (Exh.45) is assailed by the learned counsel for the appellants, as according to them, the said dying declaration is the outcome of tutoring. In order to buttress this point, it is strenuously urged that in the dying declaration Savitrabai has given complete names of all the appellants. According to the submission, as put forth, this fact itself demonstrates that Savitrabai has not given any statement, but the same was fabricated. The dying declaration does not render worthless, merely because Savitrabai has given complete names of the assailants, and on that count the said dying declaration cannot be discarded. We cannot forget the fact that the assailants and the injured Savitrabai hail from village Itlapur. From the cross-examination of PW3 Madhavrao, it is established on record that village Itlapur consists of 100 houses only. Further, from the evidence of PW5 Uddhav, son of Savitrabai, it is clear that the relations between his father Madhavrao i.e. husband of Savitrabai and Apparao were cordial in past. From the cross-examination of PW3 Madhavrao, it is established on record that village Itlapur consists of 100 houses only. Further, from the evidence of PW5 Uddhav, son of Savitrabai, it is clear that the relations between his father Madhavrao i.e. husband of Savitrabai and Apparao were cordial in past. In fact, it appears so, because according to Madhavrao, he has purchased two gunthas of land from Apparao about 25 to 30 years back, on which the cattle shed was erected and in spite of the fact that the land was purchased, no sale deed was executed in favour of Madhavrao, that clearly suggests and shows that the relations between them were extremely cordial. Therefore, even Madhavrao did not bother to obtain the sale deed from Apparao. The evidence of PW5 Uddav further shows that in the Grampanchayat election, his father Madhavrao formed a panel and the panel formed by Madhavrao defeated the panel of Apparao. Therefore, Apparao had grudge in his mind. This fact clearly shows and suggests that Savitrabai was knowing the full names of the assailants. Therefore, merely because full names were given, the dying declaration cannot be branded as doubtful. 28. The further submission of the learned counsel to attack the dying declaration (Exh.45) is the over writing on the dying declaration about the timing. According to the learned counsel, the over writing in respect of the timing creates serious doubt about the truthfulness and genuineness of the dying declaration. Now, the timings are on the top and bottom (i.e. endorsement Exh.64) of Exh.45. Obviously, the said timing is in respect of the examination of Savitrabai by PW11 Dr. Anjali about Savitrabai_ s fitness in order to give her statement. According to PW2 Mohd. Bashir, he received intimation of M.L.C. At about 10.15 and he immediately rushed to the hospital and thereafter the doctor after examining the patient gave the certificate (Exh.64). According to the learned counsel, in cross-examination of PW11 Dr. Anjali initially time was recorded as 10.55 a.m. and later on it was corrected as 10.15 a.m. The learned counsel for the appellants has heavily relied upon these admissions and also on the statement made by PW2 Mohd. According to the learned counsel, in cross-examination of PW11 Dr. Anjali initially time was recorded as 10.55 a.m. and later on it was corrected as 10.15 a.m. The learned counsel for the appellants has heavily relied upon these admissions and also on the statement made by PW2 Mohd. Bashir in the cross-examination that he received the letter from the police station at 10.45 a.m. and at the end of the dying declaration Exh.45 the doctor has recorded her endorsement (Exh.65) at 10.45 a.m. This was the submission on behalf of the appellants in order to buttress and substantiate their claim that the dying declaration (Exh.45) is not genuine document and in fact it is not the version of Savitrabai. 29. At the first blush, the argument of learned counsel for the appellants is very attractive. However, on the close scrutiny of the record, it is clear that the said argument needs to be rejected. The medical case papers of Savitrabai are available on record at Exh.76. Exh.76 starts from Page 279 of the paper book and it ends on page 290. The case papers of Savitraai are contemporary record maintained by the hospital authority from time to time from 10.00 a.m. on 15.1.2008 till her death at 6.15 a.m. on 16.1.2008. It is not the case of the counsel for the appellants that these case papers were tampered at any point of time by anybody. Neither there is any case nor it is the submission of the counsel for the appellants that any person from the hospital authorities was interested to secure conviction of each of the appellants and they have manipulated the said record. No doubt, it is true that there is statement of PW11 Dr. Anjali that initially at Exh.64 time was mentioned as 10.55 a.m. and it was corrected as 10.15 a.m. and the doctor had put her initials thereon. However, if Exh.76 is minutely perused and especially at paper book page 287, it is very clear that the doctor has made endorsement in the case papers of Savitrabai on 15.1.2008 at 10.15 a.m. to the effect that, _ patient is conscious during statement. Statement started at 10.15 a.m. Such is the endorsement available on the top of Exh.45, which is proved at Exh.64. Statement started at 10.15 a.m. Such is the endorsement available on the top of Exh.45, which is proved at Exh.64. Thus it is very clear that contemporaneous document, namely the case paper of Savitrabai duly maintained by the hospital authorities clearly shows that Savitrabai was examined at 10.15 a.m. on 15.1.2008 and recording of her statement was started at 10.15 a.m. We cannot forget the fact that PW11 Dr. Anjali and PW2 Mohd. Bashir were giving their evidence after the lapse of two years. Therefore, much importance cannot be ascribed for such minor discrepancies so far as time part is concerned, especially when we can fall back upon very conveniently on the other contemporaneous document which is duly proved at Exh.76. According to the learned counsel for the appellants, in cross-examination PW2 Mohd. Bashir has stated that he has received the letter at 10.15 a.m. and the doctor has put her endorsement at the end of the dying declaration as 10.45 a.m. Therefore, according to the learned counsel for the appellants, this fact itself demonstrates that the dying declaration (Exh.45) is not genuine one. Even if we examine Exh.76 again, it is clear that the timing given by the doctor is 10.45 a.m. So merely because it was stated by PW2 Mohd. Bashir that he received the letter at 10.45 a.m. that by itself does not render the entire dying declaration a waste paper, especially when there is no other circumstance pointed out by the learned counsel by which it could be said that the statements made in the dying declaration are untrue and/or it is not the truthful version of Savitrabai, and therefore, we have no hesitation in our mind to record a finding that on appreciation of the evidence of PW2 Mohd. Bashir and PW11 Dr. Anjali, coupled with the documents, namely endorsements (Exh.64), Exh. 65 as found on the dying declaration (Exh.45) and the entries about the timings of starting of the dying declaration and its completion as available on page 287 of the paper book, which is part and parcel of Exh.76 the case papers of Savitrabai, clearly show that PW2 Mohd. Bashir recorded the dying declaration (Exh.45) of Savitrabai and she has given the account of assault in the said dying declaration. Therefore, according to us, the dying declaration (Exh.45) of Savitrabai can safely be relied upon. 30. Bashir recorded the dying declaration (Exh.45) of Savitrabai and she has given the account of assault in the said dying declaration. Therefore, according to us, the dying declaration (Exh.45) of Savitrabai can safely be relied upon. 30. Now turning to Exh.42, another dying declaration of deceased Savitrabai recorded by PW1 Kishor Deshmukh, Incharge Tahsildar of Parbhani. PW1 Kishor when he was in his office on 15.1.2008, received a letter from Nanal Peth police station requesting him to record the dying declaration of Savitrabai, who was admitted in the Civil Hospital, Parbhani. Accordingly, he went to the Civil Hospital, Parbhani and made inquiry about the patient. His evidence further discloses that he visited the concerned ward along with the concerned Medical Officer and it is clear from the record that the said concerned Medical Officer was PW11 Dr. Anjali More. PW1 Kishor made request to PW11 Anjali to verify whether the patient is conscious and is in a position to give statement before him. Accordingly, PW11 Dr. Anjali examined Savitrabai and found that she was in conscious state of mind. Accordingly, PW11 Dr. Anjali made an endorsement to the effect that the patient is conscious. The said endorsement is at Exh.66. This endorsement was made at 11.20 a.m. and thereafter PW1 Kishor started recording the dying declaration of Savitrabai. From the evidence of PW1 Kishor, it is clear that initially he asked the name of the patient, age, occupation and residential address. The evidence of PW1 Kishor further shows that to these questions put by him to Savitrabai, she has disclosed her name as Savitrabai Madhavrao Renge, aged 40 years, occupation household and resident of Itlapur. He has stated that Apparao’s sons set Savitrabai ablaze forcibly. She has disclosed that since Apparao lost election of Sarpanch, she was set ablaze. Apparao was present at that time. The incident occurred at 9.00 a.m. in the morning. She has further stated that at the occurrence of the incident, there were many persons, however, she was unable to disclose their names. She has further stated that she has complaint against Apparao. After recording of the dying declaration which was finished at 11.30 p.m., PW1 Kishor obtained her left thumb impression in his presence. She has further stated that at the occurrence of the incident, there were many persons, however, she was unable to disclose their names. She has further stated that she has complaint against Apparao. After recording of the dying declaration which was finished at 11.30 p.m., PW1 Kishor obtained her left thumb impression in his presence. The evidence further discloses that thereafter he asked the doctor whether the patient was conscious through out during recording of her dying declaration and the doctor made endorsement that the patient was conscious at the end of the statement and was conscious through out recording of her statement. The said endorsement is at Exh. 67. The said endorsement is proved by PW11 Dr. Anjali. PW1 Kishor has also stated that he put his signature on the dying declaration and the doctor has also signed the said dying declaration in his presence. The dying declaration, as recorded by PW1 Kishor, was identified by PW1 Kishor before the court. During cross-examination, from the evidence it appears that the authenticity of the dying declaration was tried to be put under cloud on the basis that in the dying declaration he has not mentioned in Exh.42 that the contents of the dying declaration were read over to the patient, nor near the thumb impression it is mentioned by him that it is the thumb impression of Savitrabai. 31. The same line, which was found in cross-examination was further toed by the learned counsel appearing for the appellants before this court. According to the learned counsel, there is no contemporaneous document to show and suggest that the dying declaration was read over to the declarant and it was admitted by her to be correct. It is true that the record shows that in Exh.42 it is not mentioned by PW1 Kishor that the statement of Savitrabai was read over to her and she admitted the contents thereof. However, from the witness box, PW1 Kishor has specifically stated that the contents of the dying declaration were read over by him to the patient. The further limb of argument, as advanced by the learned counsel to attack on Exh.42 is that the thumb impression, as found in Exh.42, is not identified by either the scribe i.e.PW1 Kishor or the doctor, who has certified about the fitness. The further limb of argument, as advanced by the learned counsel to attack on Exh.42 is that the thumb impression, as found in Exh.42, is not identified by either the scribe i.e.PW1 Kishor or the doctor, who has certified about the fitness. From the perusal of the dying declaration (Exh.42), we find that there is considerable force in the arguments of learned counsel. However, the question is whether on that count alone the dying declaration should be discarded or not. From the entire cross-examination of PW1 Kishor, nothing is brought on record even remotely to show and/or suggest that on 15.1.2008, apart from recording of dying declaration of Savitrabai, PW1 Kishor has recorded dying declaration of another patient on that day, nor we find anything on record from the entire evidence of PW11 Dr. Anjali that on the same day, apart from Savitrabai, she examined another serious patient and gave the certification about the fitness like Exhs.66 and 67. Therefore, it is clear that on 15.1.2008 PW1 Kishor was given duty of recording of dying declaration of patient Savitrabai and he has recorded the statement of Savitrabai alone. Had there been no other dying declaration and/or the eye witnesses as available in the present case, then even this omission of mentioning the fact that the thumb impression of the declarant was not certified, would have made great impact on the prosecution case and if such dying declaration is the sole evidence available against the accused, then it would certainly a case wherein one could safely reach to the conclusion that the prosecution has failed to establish its case beyond reasonable doubt. However, in the present case, we are having another dying declaration (Exh.45) and the ocular account of the incident that occurred on 15.1.2008. 32. Further, the account, as given in the dying declaration (Exh.42) by Savitrabai is shorter version as compared to her statement which is made at Exh.45. However, if both the dying declarations are examined very minutely and closely, one fact clearly emerges that Savitrabai has made a specific statement that it is Apparao and his sons who are the culprits of setting Savitrabai ablaze. Merely because, the sentence in Exh.45 that Savitrabai was thrown on grass and grass was put on fire, does not find place in Exh. Merely because, the sentence in Exh.45 that Savitrabai was thrown on grass and grass was put on fire, does not find place in Exh. 42, according to us, that by itself is not sufficient to discard Exh.42, especially when the author of setting her ablaze is consistent one. 33. We also cannot forget one aspect that recording of her first dying declaration was started at 10.15 a.m. and same was completed at 10.45 a.m.; whereas the commencement of recording of second dying declaration i.e. Exh.42 was started at 11.20 a.m. on 15.1.2008. It is also not in dispute that Savitrabai suffered injuries to the extent of 98 per cent. Therefore, after lapse of time of about 35 minutes she would not have been able to give the detailed account of the incident as given by her in Exh.45. 34. Learned counsel appearing in Criminal Appeal No. 215 of 2011 has relied upon following cases. (1) 2004 ALL MR (Cri) 3220 [Shivaji s/o Tukaram Patdukhe vs State of Maharashtra] (2) 2007) 11 SCC 269 [Shaikh Bakshu and others vs State of Maharashtra] (3) 2012 ALL MR (Cri) 2453 [Paikuji s/o Shankar Ataram vs State of Maharashtra] (4) 2005 ALL MR (Cri) 1599 [Suresh s/o Arjun Dodorkar(Sonar) vs State of Maharashtra] 35. In the present case, in view of the fact that apart from two dying declarations Exh.42 and Exh.45 on record, there is ocular version of the incident, dated 15.1.2008 in the form of evidence of PW3 Madhavrao Renge, the husband of deceased Savitrabai, PW4 Raghunath Shinde and PW5 Uddhav Renge. Thus, it is very clear that, in the present case the prosecution case does not rest only on two dying declarations. From the evidence of the eye witnesses, as discussed in the succeeding paragraphs, it is very clear that there is full corroboration from the ocular account to the two dying declarations of Savitrabai. In that view of the matter, merely because there is no certification on the part of PW1 Kishor Deshmukh about the fact that he has not mentioned that the contents in dying declaration were read over to the patient and/or he has not certified that the thumb impression is that of Savitrabai, the dying declarations do not lose its importance, and one cannot raise suspicion about the truthfulness of its contents. In that view of the matter, the afore said cases, as relied upon by the learned counsel, are of no use in the present case. Therefore, we are of the view that both the dying declarations Exh.42 and Exh.45 can safely be accepted as a truthful version of deceased Savitrabai. It is amply proved that while recording both the dying declarations the declarant was in a fit mental condition to give her statement. According to us, there are no circumstances which could be branded as suspicious to discard the said statements. 36. Apart from these three witnesses, we have on record the evidence of PW12 Parmeshwar Renge and PW13 Vishwanath Renge, who reached the spot of the incident immediately and they were also attacked and sustained injuries. 37. In so far as eye witness account is concerned, PW3 Madhavrao the husband of deceased Savitrabai gave the account of occurrence that on 15.1.2008 when he was present in his house, that time all the appellants arrived in the cattle shed. At that time, they were armed with lathis and axes and they started removing the iron sheets fixed on the roof of the cattle shed and when he requested not to remove the said sheets, those were thrown on the ground. From his evidence, it is clear that he has purchased two gunthas of land from Apparao approximately 25 to 30 years back and erected cattle shed. His evidence further shows that the assailants, namely appellants were asking him to vacate the land and also extended threat that if he failed to vacate the same, they would kill him. In spite of the request, when the assailants were not obliging, he attempted to intervene and stop them from removing the sheets, at that time his wife Savitrabai and son Uddhav also attempted to intervene to stop the appellants from removing cattle shed tin sheets. At that time, according to this witness, he was attacked by Apparao, Sachin and Achyut with fist blows and kicks and he was thrown out of the cattle shed and the door was closed. As per the ocular version of this witness, that time his wife Savitrabai entered in the cattle shed. His further version is that Apparao was possessing the bottle containing kerosene. As per the ocular version of this witness, that time his wife Savitrabai entered in the cattle shed. His further version is that Apparao was possessing the bottle containing kerosene. According to the ocular version, after Savitrabai entered into the cattle shed, Apparao splashed the kerosene in the entire cattle shed and then Sachin set the cattle shed on fire, due to which Savitrabai caught fire and on hearing the cry from Savitrabai when he tried to enter in the cattle shed, accused Gopal inflicted an axe blow on his head. The injury certificate of Madhavrao is at Exh.72, which shows that he received contused lacerated wound 10x2x2 cms. on scalp (parieto temporal region). 38. Another witness, who was examined by the prosecution as a witness to the incident is PW4 Raghunath Shinde. At about 7.30 a.m. on the date of incident he was present near the temple of Lord Hanuman and he noticed some people running towards eastern side of the village. He also followed them. He noticed that the people had gathered in front of the cattle shed of Madhavrao Renge (PW1). As per this witness, all the appellants were present there and all of them had entered the cattle shed of Madhavrao. They started removing the tin sheets of the cattle shed. The evidence of this witness further goes to point out that, that time Savitrabai arrived and she entered in the cattle shed. From the testimony of this witness, it is clear that this witness was present on the spot of the incident and it was found by him that Apparao was removing tin sheets and when it was requested by Madhavrao not to remove the tin sheets, he was asked to leave the cattle shed. When Savitrabai attempted to resist, abuses were hurled by Sachin and Achyut. Thereafter, after extending threats, Apparao started sprinkling kerosene on the fodder in the cattle shed. The evidence of this witness further establishes that though kerosene was sprinkled, Savitrabai did not move from the place and then Sachin ignited match stick and set the fodder on fire. Savitrabai caught fire. When she attempted to run away from the cattle shed, Madhavrao came forward to extinguish the fire, that time a blow of axe was inflicted on the head of Madhavrao by Gopalrao, due to which he fell down. Savitrabai caught fire. When she attempted to run away from the cattle shed, Madhavrao came forward to extinguish the fire, that time a blow of axe was inflicted on the head of Madhavrao by Gopalrao, due to which he fell down. This witness attempted to extinguish the fire and in that process he sustained injuries. It is very clear from the version of this witness that this incident occurred because Apparao and his panel lost Grampanchayat election against Madhavrao (PW1) and his panel, and taking undue advantage of the fact that premises of cattle shed was standing in the name of Apparao, Apparao picked up quarrel to take revenge. The injury certificate of Raghunath Shinde is at Exh. 68, which shows that he received 9% burn injuries on both upper limbs. 39. The third person examined as eye witness to the incident is PW5 Uddhav s/o Madhavrao and deceased Savitrabai. The evidence of this witness shows that initially relations between his father and Apparao were cordial, however, because of elections the relations became sore. The panel formed by his father was elected in Grampanchayat elections and the panel of Apparao lost the said election and thereafter Apparao bore grudge in his mind. This witness, in clinching words, has stated that on the date of incident all the appellants/accused armed with sticks and axes arrived at the cattle shed and started removing tin sheets from the cattle shed. When this witness and his father requested not to remove the tin sheets, Apparao uttered that his father has become proud, he has formed panel and contested the election against him and succeeded in the same. According to this witness, Apparao quipped that he would remove tin sheets and will get the cattle shed vacated. That time, mother Savitrabai attempted to request Apparao, however, Apparao extended threat. Thereafter, Apparao sprinkled kerosene on the fodder in the cattle shed and Sachin set it on fire by lighting the match stick and when this witness tried to prevent Sachin from setting on fire the cattle shed he was assaulted by Saheb and Sachin on his head. This witness has also deposed that when his father tried to extinguish flame of his mother, he was attacked. His injury certificate is at Exh. 69, which shows that he received contused lacerated wound 10x1x1 cms. on his scalp. 40. This witness has also deposed that when his father tried to extinguish flame of his mother, he was attacked. His injury certificate is at Exh. 69, which shows that he received contused lacerated wound 10x1x1 cms. on his scalp. 40. According to the counsel for the appellants, it was never the intention on the part of the accused persons to kill Savitrabai. According to the learned counsel, the evidence on record would suggest that Savitrabai was never set on fire. Savitrabai had entered in the cattle shed, therefore she sustained injuries. Savitrabai was not restrained from coming out of the cattle shed. According to the learned counsel, there is material variance in between the evidence of PW3 Madhavrao and PW4 Raghunath in as much as PW4 Raghunath is silent about making the statement that the accused were armed with lathis as stated by Madhavrao. According to the counsel, even the evidence of PW5 Uddhav clearly shows that it was never the intention of the accused persons to set Savitrabai on fire, but they set cattle shed on fire and accidentally Savitrabai got burn injuries. These submissions on behalf of the appellants, in our considered view and opinion, have to be rejected. There is a clear evidence, which has not been shattered during cross-examination that the accused persons arrived on the spot of the incident and that time they were armed with deadly weapons like axes and sticks. It is also very clear that kerosene was brought by them. Kerosene when used as a weapon of offence can cause death of human being. Now, from the evidence of this eye witness, it is clear that the couple, namely Madhavrao and his wife Savitrabai were requesting Apparao and his associates not to remove the tin sheets, however, Apparao and his associates were adamant. The cattle shed was having dry fodder and grass. It is established on record that Savitrabai was inside the cattle shed. If there was no intention on the part of the appellants to cause bodily injury, Apparao would not have sprinkled kerosene, and knowing fully well that kerosene was sprinkled on the dry fodder and grass and Savitrabai was inside the cattle shed, still Sachin ignited the match stick and set it on fire. Therefore, it is really difficult to accept the argument of the counsel for the appellants that Savitrabai has received injuries due to accident. Therefore, it is really difficult to accept the argument of the counsel for the appellants that Savitrabai has received injuries due to accident. Therefore, it is our considered view that this case is nothing but a culpable homicide amounting to murder, as it squarely falls under clause Fourthly of Section 300 of the Indian Penal Code. 41. It was common argument on behalf of the counsel appearing for the appellants in both the appeals that apart from Apparao and Sachin, the other appellants cannot be held responsible for the offence punishable under Section 302 with the aid of Section 149 of the Indian Penal Code. According to the learned counsel appearing in Appeal No. 225 of 2011, the prosecution has failed to prove common object. No specific role is attributed to accused nos. 5, 6, 8 to 10. It is strenuously urged that in view of the reported judgments, in the cases of - Shaji and others vs State of Kerala [ AIR 2011 SC 1825 ]; Shiyjee Singh and others vs State of Bihar [ AIR 2009 SC 417 ]; and Kuldip Yadav and others vs State of Bihar [ AIR 2011 SC 1736 ], mere presence in an unlawful assembly cannot render a person liable for commission of offence, unless there was a common object and said person was actuated by common object and that object is one of those as set out in Section 141 of the Indian Penal Code. 42. It will be useful to give the account of the evidence of PW6 Sanjay Renge. From his evidence, it is clear that he reached to the spot and found that Apparao and his associates were removing tin sheets. This witness requested Apparao not to remove tin sheets. His evidence shows that he made a suggestion that he will call police and they should try for amicable settlement, however, this witness was expelled from the field with a threat that he should not enter the field, and therefore, he left the place and proceeded for going to the police station, however, when he went at some distance, he heard hue and cry of a woman, and therefore, he returned back at the place of the incident, only to find that Madhavrao sustained injury and Savitrabai sustained burn injuries. 43. 43. PW7 Eknath Renge also reached to the spot when the incident was going on and when he tried to intervene, he received a blow of stone. His injury certificate is at Exh.73. He has received contused lacerated wound on his scalp. 44. Another witness, who was present at the time of incident is PW8 Shahurao Renge, whose evidence shows that when the accused party was removing tin sheets, Savitrabai and Madhavrao were requesting them not to remove the tin sheets and that time Apparao and his associates were armed with sticks, axes, etc. The accused were hurling abuses. This witness also received a stick blow on his leg, which was dealt with by Apparao. His injury certificate is at Exh.71. 45. PW9 Dnyanoba Renge was examined as a panch to prove the spot panchanama (Exh.58). The spot panchanama reveals that eleven tin sheets were found to be thrown on ground, half burnt Mangasutra was found on the spot, not only that, chilly powder was found on the spot. 46. Another witness PW13 Vishwanath Renge also deposed that when he reached to the spot of the incident on hearing hue and cry, he sustained injuries. His injury certificate is at Exh.74. He received injury on knee joint and leg. Also PW12 Parmeshwar Renge, who also reached the spot of the incident after hearing hue and cry, found that Madhavrao was lying on the ground with head injury and when he attempted to help him in getting up, he was inflicted blow of stick by accused no.3-Achyut Pund. His injury certificate is at Exh.75. 47. In the light of the injuries received by not only the eye witnesses, but also the persons, who tried to rescue the couple, were also attacked by the members of unlawful assembly, namely the appellants. It is clear that, right from beginning, all the appellants were armed with deadly weapons. Even giving a premise in favour of the appellants that initially their common object was to get the cattle shed vacated, however, from the quality of the evidence on record, it is crystal clear that it was their common object to go to the extreme step so as to get the cattle shed vacated. Therefore, it is clear that in order to execute their common object, they were armed with the deadly weapons and inflammable article like kerosene. Therefore, it is clear that in order to execute their common object, they were armed with the deadly weapons and inflammable article like kerosene. From the spot panchanama, it is clear that even the appellants were carrying chilly powder with them, though no witness has stated that it has been ever used, however, the spot panchanama mentions that We should not forget one fact that the place of incident is cattle shed, wherein presence of chilly powder in a carry bag is most unnatural. Therefore, it is clearly attributable to the appellants that they carried the same, though it was not used, however, this shows their intention. The evidence clearly shows that the common object of the unlawful assembly was to get the cattle shed vacated at any cost, which was in lawful possession of Madhavrao. Therefore, the said object to get vacated the land from the lawful possession of the person by using force was clearly an unlawful act. The evidence clearly shows that the incriminating act on the part of Apparao, Sachin and Achyut and others was to accomplish the common object of unlawful assembly, and as stated herein above, every member was armed with some kind of deadly weapon and it was well within the knowledge of every member of the unlawful assembly that the such act is likely to be committed in prosecution of the common object. Therefore, the submission on the part of learned counsel Shri Jadhavar appearing for the appellants that no specific role is attributed to accused no.5 Balu, accused no.6 Sandeep, accused no.8 Motiram, accused no.9 Rustum and accused no.10 Gopinath and as such they cannot be held guilty for the commission of the offence punishable under Section 302 r/w Section 149 of the Indian Penal Code, has to be rejected, because these accused persons were members of unlawful assembly having common object to get the cattle shed vacated and for the said purpose, they all were armed with deadly weapons and in prosecution to accomplish their common object, the other members of the unlawful assembly have attacked the prosecution witnesses and also the prosecution witnesses who tried to extend helping hand to Madhavrao and Savitrabai. Therefore, these persons cannot come with the case that they did not share common intention to accomplish the common object of the unlawful assembly. Therefore, these persons cannot come with the case that they did not share common intention to accomplish the common object of the unlawful assembly. In that view of the matter, it is crystal clear that each of the appellant is guilty of commission of the offence punishable under Section 302 r/w Section 149 of the Indian Penal Code. 48. The learned Trial Judge has rightly found that the appellants were guilty of committing offences punishable under Sections 147, 148, 302 r/w 149, 324 r/w 149, 436 r/w 149, 440 r/w 149, 448 r/w 149 and 449 r/w 149 of the Indian Penal Code and they were rightly convicted. 49. Thus, it is very clear that the prosecution has proved its case beyond reasonable doubt by two dying declarations and by eye witness account, as discussed herein above. 50. In that view of the matter, we find no merit in both the appeals. No interference is called for in the impugned judgment and order of conviction and sentence. Consequently both the appeals are dismissed. The judgment and order of conviction, dated 11.4.2011, passed by the learned Sessions Judge, Parbhani, in Sessions Trial No. 80 of 2008 is hereby confirmed.