High Court
Legal Reasoning
{1} CRAPL 313.19 W 314.19 R.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 313 OF 2019Kachru Balaji KotkarAge 72 years, Occ. Agriculture,R/o. Nepti Road, Lalanagar, Kedgaon,Tq and Dist. Ahmednagar.. AppellantVersusThe State of Maharashtra.. RespondentMr. Joydeep Chattarji, Advocate for appellantMr. S.R. Wakale, APP for respondent.WITHCRIMINAL APPEAL NO. 314 OF 20191]Ramdas Kacharu KotkarAge 35 years, Occupation Driver,2]Alka Ramdas Kotkar,Age 32 years, Occ. Housewife,Both R/o. Nepti Road, Lalanagar, Kedgaon,Tq. and Dist. Ahmednagar.. APPELLANTS[ Ori. Accused Nos. 1 and 2]versusThe State of Maharashtra.. RESPONDENT.Mr. Vijay R. Gundecha, Advocate for the appellantsMr. S.R Wakale, APP for respondent. CORAM : SANDIPKUMAR C. MORE AND MEHROZ K. PATHAN, JJ. RESERVED ON : 15th SEPTEMBER, 2025. PRONOUNCED ON : 13th OCTOBER, 2025.
Legal Reasoning
{2} CRAPL 313.19 W 314.19 R.odtJUDGMENT [ PER MEHROZ K. PATHAN, J] :-1.The appellants have filed present appeals therebychallenging the judgment dated 28.11.2018 passed by the SessionsJudge, Ahmednagar in Sessions Case No. 103 of 2017, whereby,appellants Ramdas Kotkar, Alka Kotkar, Kachru Kotkar, were convicted forthe offence punishable under Sections 302 r/w. 34 of IPC and weredirected to suffer life imprisonment and to pay fine of Rs.3,000/-, indefault , to suffer R.I. for 3 months.2.The case of the prosecution is that, Ganesh Kotkar, (husbandof the deceased- Ranjana Kotkar) had brought his wife in burn conditionin the Civil Hospital Ahmednagar, wherein, treatment was given to her.She noted the history of burn injuries as “due to explosion of stove whilecooking”. The MLC was received by the concerned police station and thepolice Office – ASI Shri Rane approached the concerned doctor SupriyaVeer – Jagtap and requested her to examine the patient and statewhether the patient is in a fit state of mind and capable to givestatement.3. After receiving the endorsement by the Doctor SupriyaJagtap that the patient is fit, ASI Rane recorded her statement, wherein,she narrated that at about 9.00 a.m. on 25.3.2017, when she was doinghousehold work, the children were playing in the house and suddenly,the appellants herein started abusing the victim and her children. VictimRanjana had a verbal altercation with them and she made themunderstand not to abuse her children. The victim Ranjana further statedthat the appellants were always abusing Ranjana on some or the othertrivial issue and asked the appellants to behave properly and enter herhouse. All the 3 accused followed her and abused her, accused –Kacharu, father in law, caught hold of both hands of the victim, Ramdas, {3} CRAPL 313.19 W 314.19 R.odtbrother in law of victim (accused No.1) poured kerosene on her personand Alka, sister in law of the victim (accused No.2) had lit the matchstick and set the victim ablaze.The husband of the victim – GaneshKotkar came running from opposite direction and attempted toextinguish the fire with the help of cloth and thereafter, manyneighbouring persons were present. The father in law had alsoextinguished the fire by putting the quilt on the deceased. The deceasedsustained several burn injuries on her face, chest, stomach and back.After recording the statement of deceased Ranjana, Dr. Jagtap hadexamined patient and made another endorsement below the statementthat the patient was conscious and oriented throughout the treatment.4.The police Inspector ASI Raje further wrote a letter to theSpecial Judicial Magistrate requesting him to record the anotherstatement of the patient Ranjana. Accordingly, the Special JudicialMagistrate recorded second statement of Ranjana in presence of the samemedical Officer – Dr. Supriya Jagtap. Thus, on the basis of statement ofRanjana, an offence was registered at Kotwali Police Station,Ahmednagar vide Crime No. 151 of 2017 for the offence under Section307, 504 r/w. 34 of IPC. On 26.03.2017, Ranjana succumbed to injuriesand therefore Section 302 IPC was added. 5.The investigation progressed and after collecting the relevantevidence like recording spot panchanama, seizure of articles from thespot, recording of statements of witnesses, Dying Declarations, seizure ofclothes, drawing of inquest panchanama, the investigation was completeand charge sheet was filed before the learned jurisdictional court i.e. 3rdJMFC, Ahmednagar. The case was committed to the learned SessionsJudge being exclusively triable by a Court of Sessions and as such, thelearned Sessions Judge had framed charge under Section 302, 504 r/w.34 of IPC against all the accused persons wherein accused have pleaded {4} CRAPL 313.19 W 314.19 R.odtnot guilty and claimed to be tried.The prosecution had examined of in all ten witnesses tobring home the guilt of present appellants and further relied uponvarious relevant documents to prove the case. The learned SessionsJudge, after considering the evidence led by the prosecution and alsoconsidering the explanation given under Section 313 of Cr.P.C., waspleased to hold the appellants guilty of committing gruesome murder ofthe deceased Ranjana and thereby convicted the appellants under Section302 r/w. 34 of IPC and sentenced them for imprisonment for life andfine.6.We have heard Shri Joydeep Chatterji, learned Advocateappearing for the appellant Kachru in Criminal Appeal No. 313 of 2019,Shri Vijay Gundecha learned Advocate for the appellants in Criminalappeal No. 314 of 2019 and Shri S.R. Wakale learned APP appearing forthe State in both the appeals.7.Shri Chatterji, learned advocate for the appellant submitsthat the prosecution has grossly failed to establish the guilt of theappellants beyond reasonable doubt. The recording of dying declarationsis itself doubtful, inasmuch as, the prosecution witness No.1 SharadPawar, who was witness on the inquest panchanama had specificallystated that both the hands and legs and dead body were totally burntincluding the fingers. It is further stated by PW 1 that skin of both handsand legs of dead body was hanging and that he has minutely seen allthese things, therefore, is deposing before the court. He further reliedupon the documents inquest panchanama at exh.19 which specificallyspeaks about the burn injuries sustained by the deceased as stated by PW-1. Shri Chatterji would further submit that Baban Japkar, brother of thedeceased Ranjana has specifically deposed that his sister Ranjana had {5} CRAPL 313.19 W 314.19 R.odtexpired due to explosion of stone and has denied that on 24.3.2017 hissister Ranjana had made a phone call complaining about the crueltycommitted by the appellants on account of agricultural land. Said witnessis declared hostile by the prosecution and even in the cross examination,said PW-2 deposed that his sister Ranjana informed him that she wasburnt due to explosion of stove and that accused Ramdas had returnedfrom his work at the evening time. It is further stated in his crossexamination that all the accused persons were present in the funeral ofRanjana on 26.3.2017. Mr. Chatterjee, therefore, submits that the realbrother of the deceased Ranjana itself did not support the prosecutioncase, which creates a serious doubt about the prosecution story puttingdeceased Ranjana on fire by the appellants. 8.The next limb of arguments of the appellants is that PW-3Ganesh Kotkar, who happens to be the husband of deceased Ranjana isnot made accused in the crime as there was no indictment of Ganesh inthe alleged dying declarations by deceased Ranjana. PW-3 Ganesh(husband of deceased) has specifically stated in cross examination thathis elder brother Ramdas (accused No.1) was a driver by profession andon the date of incident, he was in Supa. PW-3 further stated in crossexamination that, on the date of incident, his father was at field. Hefurther stated that his wife Ranjana was cooking and caught fire due toblast of stove. He and his father extinguished the fire. Mr. Chatterji,further states that thus, PW-3 who is husband of the deceased and is notarrayed as accused had clarified in his further cross examination thatabout 6 years ago, there was partition of the family properties betweenthe brothers and therefore, there was no dispute regarding the propertybetween the appellants and husband of the deceased i.e. PW-3 Ganesh.He, therefore, submits that even the husband of the deceased was presenton the spot and extinguished the fire alongwith father – accused Kachru,he did not attribute any role to the accused persons in putting deceased {6} CRAPL 313.19 W 314.19 R.odtRanjana on fire. Thus, the testimony of PW-3 husband also createsserious doubt about the prosecution story.9.Next witness PW-4 Somnath Gaikwad was a panch witnesson the spot panchanama, who had specifically stated in the crossexamination that the police have not seized the stove from the spot ofincident. The learned counsel for the appellant therefore, submits thatthere is suppression of material fact by the prosecution inasmuch as, theprosecution has failed to seize the stove, which was important piece ofevidence only with an intention to implicate the present appellants. Thespot panchanama only shows match box, gunny bags and 5 burnt clothes,one quilt and a drum. Thus, the stove which was important article wasdeliberately not seized from the spot. The evidence is, therefore, doubtfuland liable to be rejected.10PW-5 Dr. Shrikant Pathak who conducted the post mortem,has specifically stated that deceased Ranjana was examined by her forpost mortem and that he found 85 % superficial deep burn injuries. Thewitness No.5 also did not notice any ink on the thumb or limb of deadbody. Thus, creating doubt about the thumb impression appearing on thefirst dying declaration as well as second dying declaration, which wasallegedly recorded immediately before the death of the deceased. Theappellants therefore, submits that the same creates doubt regardingdying declaration.11.The next witness PW-6 ASI Abdul Kalim Ibrahim Raje,recorded the first dying declaration and gave requisition to the SpecialJudicial Magistrate to record the second dying declaration. The witnessstates that on 25.3.2017 he gave a letter (Exh.38) to Dr. Supriya Jagtapto examine the patient for recording her dying declaration (Exh.39). 12.PW-7 Dattatray Pawar, who had only registered the FIR on {7} CRAPL 313.19 W 314.19 R.odtthe basis of statement (Exh.39) i.e. dying declaration recorded by ASIRane at Kotwali Police station. 13.PW-8 is Dr. Supriya Jagtap who made endorsement aboutfitness of deceased Ranjana for recording her statement. The witnessthough states that she had examined the patient at about 7.15 p.m. afterasking questions to the patient, the counsel for the appellant submits thatthe questions which were asked to the patient were not part of therecord. It is further argued that cross examination of the said witness Dr.Supriya Jagtap shows that she had not even checked the blood pressureof the patient. As per the IPD papers, the patient was admitted in thehospital with history of accidental burn injuries. The fitness was given bythe doctor on first dying declarations Exh.39. Therefore, it does notinspire any confidence and could not have been relied upon by thelearned Sessions Judge to rest the conviction of appellants.14. PW-9 Ganesh Joshi is the witness, who has recorded seconddying declaration of deceased Ranjana. It is submitted that said witness,who is Special Judicial Magistrate has not stated in his deposition that hehad read over the contents of dying declaration to deceased Ranjana andthereafter took the thumb impression of the deceased. The counsel forappellant submits that the contents of the dying declaration were notread over to the deceased. Same is one of the important factors to beconsidered while evaluating the truthfulness and veracity of dyingdeclarations.15.The Witness Sandip Patil, I.O. had conducted theinvestigation and filed charge sheet in the crime. The I.O. had specificallyadmitted the serious lacuna on his part which amounts to suppression ofthe real story by the prosecution, inasmuch, the I.O. did not collect the IPD papers from the Civil Hospital Ahmednagar, which clearly stated aboutthe accidental burn injuries suffered by deceased Ranjana. The witness {8} CRAPL 313.19 W 314.19 R.odtIO has also not collected the other evidence i.e. tower location of cellularphone of Ramdas who was allegedly not present on the scene of offenceas per the defence. 16.Thus, the submission of learned counsel is that, consideringthe testimony of prosecution witnesses, the same does not inspireconfidence about the veracity of the dying declarations relied upon bythe prosecution and as such, the same needs to be be discarded.17.Shri Chattarjee also made submission that counsel forappellant has also examined 3 defence witnesses to disprove the charge.Amongst the witnesses examined by the defence is Dr. Pushpa Narote,who has proved the IPD papers which was deliberately suppressed by theprosecution. The sum and substance of testimony of DW-1 is that, shetook the entry of hospital of patient at Exh.67 i.e. IPD paper, on the basisof statement given by Ganesh Kotkar (PW-3) husband of deceased thatthe victim had sustained burn injuries due to explosion of stove. Thewitness Dr. Pushpa Narote further stated that the victim had also statedthat she had burn injuries due to explosion while she was cooking. Thesubmission is, therefore, that such an important piece of evidence Exh.67was suppressed by the prosecution and the said doctor taking the entryin the MLC record i.e. IPD papers, was also not examined by theprosecution, thereby leading to erroneous conviction of the appellants.This witness and Exh.67 is that the said history given by Ganesh –husband of the deceased Ranjana should be considered as the first dyingdeclaration and other dying declarations are concocted storymanipulated by relatives of deceased and falsely implicating theappellants. The submission, therefore, is that since the first dyingdeclaration exonerates any role of the appellants in the burn injuriescaused to deceased Ranjana, The contrary dying declarations therefore {9} CRAPL 313.19 W 314.19 R.odtbecomes doubtful and liable to be discarded.18.It is submitted that another important witness examined bydefence is DW-2 Alka Karale, who happens to be neighbour of deceasedRanjana, who has categorically stated that at about 9.00 a.m. GaneshKotkar and Kachru Kotkar were working in the field which is nearby andRamdas, accused No.1 had gone to Pune. The submission is, none of theappellants were present on the spot when the incident of burning ofdeceased Ranjana had taken place. The prosecution story is thereforedoubtful.19.Another defense witness examined by defence is BalasahebUrmude DW-3, who was employer of the accused No.1 Ramdas, asRamdas was working as a driver on the vehicle owned by DW-3. DW-3Balasaheb Urmude has specifically stated that on the date of incident,Ramdas Kotkar was driving his vehicle to proceed to Pune at about 5.30a.m. in the morning and therefore, submission is that, accused Ramdaswas not present on the date of incident on the spot and that the incidenttook place due to explosion of stove. Thus, it is submission of the learnedcounsel for the appellants that the story of the prosecution creates seriousdoubt about the genuineness and authenticity of the dying declarationsupon which the trial court has relied to rest the conviction of all the 3accused persons. It is submitted that such doubtful documents i.e. 2Dying Declaration could not have been relied upon by the trial court,which suffer from various infirmities and contradictions. The appellanttherefore prayed that the conviction which is solely based upon the twodying declarations recorded by the prosecution is therefore liable to bequashed and set aside.20.As against this, learned APP Mr. Wakale, appearing on behalfof the State in both the appeals submitted that there is no inconsistency {10} CRAPL 313.19 W 314.19 R.odtin the two dying declarations and the dying declarations were recordedafter examining the fitness of the patient - deceased Ranjana. There isno doubt created by the defence about the motive of the doctor who gavethe fitness and the police inspector and Special Judicial Magistrate whohave recorded the dying declarations, having any prejudice as against theappellants, so as to falsely implicate them in the said crime. The crossexamination is completely silent to the point of any motive on the part ofindependent witnesses i.e. the Doctor on fitness, the Special JudicialMagistrate and the Investigation Officer, who are all independentwitnesses and therefore, reliable witnesses. 22.The further submission of learned APP is that there isdiscrepancy in the statement of DW-1 Dr. Pushpa Narote and DW-2, as tothe timing of the incident stated by them. Smt. Narote (DW-1) hasstated in the ID papers that the incident has taken place at about 11.00a.m. at home, whereas, the witness DW-2 has stated that incident tookplace at 9.00 a.m. in morning on the date of incident. Thus, the saidwitnesses are not reliable.23.The APP has further submitted that Baban Japkar brother ofthe deceased has turned hostile, however, portions marked as A B C andD are proved by examining the IO., who has stated that the said portionsmentioned were recorded as per the say of the witness PW-2 Baban andPW-3 Ganesh. He, therefore, submits that even though the witnessesturned hostile, their entire statements can not be discarded and somequestions to which they have supported the case of the prosecution, canbe relied upon in support of the dying declarations. 24.The next submission is that, DW-3 Mr.Balasaheb Urmude,examined by the defence, is a got up witness, who has falsely stated thatthe accused No.1 Ramdas was driving his vehicle. There is nothingbrought on record by the defence to show that the accused No.1 Ramdas {11} CRAPL 313.19 W 314.19 R.odtwas actually serving with said Balasaheb Urmude as a driver. Neitherany salary slip, nor any appointment letter or any relevant document isproduced to show that the accused No.3 was not on the spot on the dateof incident and in fact, was driving his vehicle at Pune, leaving at 5.30a.m. on the date of incident. Thus, the testimony of all the 3 defencewitnesses is liable to be discarded. The impugned judgment is just andproper and deserves to be maintained, thereby maintaining theconviction of the appellants.25.Mr. Gundecha, learned counsel for the appellants in CriminalAppeal No. 314 of 2019 i.e. Ramdas and Alka, had also made hissubmissions, by assailing the dying declarations relied upon in theimpugned judgment. The timings of the Dying Declarations are doubtful,inasmuch as, Exh.40 shows that requisition is made by ASI Raje to theSpecial Judicial Magistrate and received by Mr. Joshi at 7.00 p.m. on25.3.2017. It is specifically stated that requisition issued to Dr. Jagtap on25.3.2017 at 07:05 pm. by Shri Joshi, Special Judicial Magistrate. TheDoctor examined the patient at 7.15 p.m. as appearing on Exh.46.PW-9 Shri Joshi has stated in examination in chief that he has receivedthe requisition from ASI Raje at 7.00 p.m. at home for recording thestatement of the deceased. Thus, the argument is that though Shri JoshiPW-9 leaves at 7.00 p.m. from his house at Savedi, as it has come in thecross examination that it took only 5 minutes thereafter to reach the CivilHospital and gave the requisition to the doctor, which is at Exh.45 at 7.05p.m. and thereafter recorded the statement of deceased. Thus, theargument of Mr. Gundecha is that, timings appearing on Exh.40 as 7.00p.m. and Exh. 45 as 7:05 p.m. and Exhibit 46 as 07:15 pm creates aserious doubt about the authenticity and genuineness on the entireprocedure followed for recording the dying declaration. He, therefore,submits that the same can not be relied upon to rest conviction. {12} CRAPL 313.19 W 314.19 R.odt26.Another limb of argument of Shr Gundecha appearing foraccused Ramdas and Alka is that the statement was not read over by ShriJoshi PW-9 to the deceased, as is admitted by him in his crossexamination. He, therefore, submits that this is another circumstance tobring the dying declarations under the cloud of suspicion and, therefore,can not be relied upon. 27.Further extension of argument on behalf of Mr. Gundecha isthat there are no signs of struggle on the body of deceased if theallegations of forcible pouring of kerosene on the body of deceased is tobe believed. The allegation in the dying declarations is that accusedKachru caught hold of the deceased and accused Ramdas pouredkerosene on the deceased, and accused Alka lit the match stick. Thus,there ought to have been some struggling injuries appearing on the bodyof the deceased, whereas, the Post Mortem report does not show anysigns of injuries which can be referred to such injuries which shows thatdeceased resisting such act of forcible burning. Therefore, in absence ofany such injuries which could have been referred as signs of struggle, theentire story of prosecution creates a serious doubt.28.Further submission is, there is no motive proved on record toshow that the accused persons could have a reason for putting thedeceased on fire. The alleged motive has also been denied by the realbrother of the deceased and as such, the same cannot be relied upon.The dying declaration shows timing of the burning incidentas 9.00 a.m. in the morning (Exh.39 and 46) whereas, the IPD papersshow the incident to have occurred at 11.00 a.m.. Thus, there is aserious discrepancy warranting interference in the judgment ofconviction. 29.Details of burn injuries was not given by concerned doctor,who had examined the patient giving fitness certificate before recording {13} CRAPL 313.19 W 314.19 R.odtthe dying declaration. This is also a serious flaw in the prosecution caseinasmuch as, second dying declaration does not make any mention aboutthe first dying declaration being recorded by the prosecution. CA reportare not produced on record and therefore, even though the articles wereseized from the spot, there is no corroborative piece of evidence whichwould lend credence to the veracity of the dying declarations.30.The Submission is, therefore that the entire prosecution storyis concocted one only to falsely implicate the accused persons. Theimpugned judgment is, therefore, liable to be set aside.31.We have considered the submissions made by Mr. Chattarjee,for appellants in Criminal Appeal No. 313 of 2020 and Mr. VijayGundecha for appellants in Criminal Appeal No. 314 of 2020, and thelearned APP for Mr. S.R. Wakale for the state on both the appeals andperused the entire record with their assistance.32.In support of submission made by Shri Chatterjee, he hasrelied upon following judgments :-(i)Prabhakar Wamanrao Salve vs. State of Maharashtra 2006All M.R. (Cri. )1274, on the point of suppression of vital piece ofevidence cast a serious doubt about the genuineness and truthfulness ofdying declarations.(ii)State of Punjab Vs. Gian Kaur, 1998(2) Crimes 25 (SC) onthe point of evidence of doctor found unreliable as he failed to makeendorsement of appearance of thumb mark on the dying declarationwhen the deceased had received 100% burns and the thumb mark of thedeceased had clear ridges and curves.(iii)Chhaya Bhausaheb Bhingardive vs. State of Maharashtra {14} CRAPL 313.19 W 314.19 R.odt2024 (1) Bom CR (Cri.) 276 on the point that when there is a doubtabout recording of dying declaration, there is a need for corroborativeevidence to rely upon such dying declaration.(iv) Shahrukh Salim Pathan vs. The State of Maharashtra 2023Bom. C.R. (Cri.) 104, on the point reiterating the principles laid down bythe Supreme Court while analyzing and accepting declarations andfurther on the point that the history given by deceased of sufferingaccidental burn injuries creates doubt about the dying declarations reliedupon by the prosecution and in the present case the said history given inthe IPD papers being suppressed by the prosecution was brought onrecord by examining defence witnesses.(v) Sk. Gulab @ Gulam s/o Sk. Ahmed Vs. The State ofMaharashtra 2018 All M.R. (Cri.) 1250 on the point that due to nonexamination of neighbours, adverse inference needs to be drawn againstprosecution.(vi)Mahadeo Prabhu Lohdhe vs. State of Maharashtra, 2015(1)Mh.L.J. (Cri.) 434 on the point that when there are multiple dyingdeclarations, the prosecution cannot pick and choose. (vii)The Judgment in the matter of Datta Patil vs. State ofMaharashtra, on the point of conviction based upon two dyingdeclarations, there was no eye witness to the incident. The first dyingdeclaration creates doubt since it has thumb impression of deceased.However, hands were completely burnt. The contents of second dyingdeclaration were not read over to the deceased before taking hissignature, therefore, the dying declarations can ot be relied upon to restconviction.(viii)Ganpat Bakaramji Lad Vs. State of Maharashtra, (CriminalAppeal No. 186 of 2013) wherein the Full Bench of the Bombay High {15} CRAPL 313.19 W 314.19 R.odtCourt has answered the question of reference that the dying declarationcannot be rejected merely because the same is not read over to thedeclarant and admitting the same to have been correctly recorded, havefurther held dying declaration not read over can be one of the factorswhich assumes significance in the facts and circumstances of the case.33.On the other hand, the learned APP for the State also reliedupon the judgment report in the matter of State of UP vs. Veerpal,(2022)4 SCC 741 on the point of multiple dying declaration andnecessity of corroboration, wherein, the Honourable Supreme Court heldthat it is neither a rule of law nor of prudence that the dying declarationcannot be acted upon without corroboration.Another judgment relied upon by the APP is Puran ChandVs. State of Haryana,(2010) 6 SCC 566 laying down the principles to beconsidered in the cases of multiple dying declarations.34.We have considered the submissions made by the learnedcounsel for appellants and the learned APP for State and have gonethrough the evidence and record with their assistance.The initial reporting of the incident is recorded in the IPD papers Exh.67wherein, history is noted as Accidental Burns on 25.3.2017 at home,given by the patient herself. The said noting in the IPD papers at 11.30a.m. on the date of incident i.e. 25.3.2017 is an important piece ofevidence, which is corroborated by the evidence of Dr. Pushpa Narote(DW-1), who had clearly stated to have taken those entries on the say ofGanesh Kotkar, PW-3, husband of the deceased and the further historynoted in entry is taken on the say of victim that she had sustained burninjuries due to explosion of stove while working. The said fact ofaccidental burns history is also corroborated by PW-8 Dr. Supriya Jagtapas per the IPD papers. {16} CRAPL 313.19 W 314.19 R.odt35.The cross examination of said witness DW-1 Dr. Pushpa bythe learned APP, did not shatter her evidence pertaining to Exh.67 and assuch, this important piece of evidence could have been taken intoconsideration by the learned trial court. The said entries in IPD papersnoted by Dr. Pushpa Narote, who had no axe to grind on the victim or herrelatives creates a dent in the prosecution story and even puts the twodying declarations under suspicion. Moreover, the said importantwitness was not examined by the prosecution and the IPD papers dated25.3.2017, showing history of Accidental Burns are suppressed.36.The further suspicious circumstance is the inquestpanchanama and the panch on inquest, who specifically states about boththe hands and legs being completely burnt. Though the percentage ofburns is stated to be 83 %, it can be seen from the testimony of PW-1, thepanch on inquest, the inquest panchanama and the Post Mortem reportthat the entire hands and legs of the deceased were burnt. The crossexamination of Dr. Shrikant Pathak, who had conducted the Post Mortemwould show that he did not notice any ink on the thumb as well as limbof the deceased. The PW-1 (Pancha on inquest) in cross examinationstates that both the hands and legs were totally burnt including allfingers and that the skin of both hands and legs were hanging. It isfurther stated by PW-1 (Pancha on inquest) Sharad Pawar that he didnot find any ink on the finger of hands and legs of the dead body. It isapposite to make a reference to the judgment of the Hon’ble SupremeCourt in the matter State of Punjab vs Gian Kaur (supra) , wherein, inan identical situation, ridges and curves on thumb impression of thedeceased appearing in dying declaration was held to be doubtful in viewof the burn injuries sustained by deceased. {17} CRAPL 313.19 W 314.19 R.odt37.The important evidence which also deserves consideration isthe role of PW-2 Baban Japkar, who is the real brother of deceased, hadturned hostile and did not support the case of the prosecution. Evenafter cross examination of the said witness by learned APP, there wasnothing brought on record to show that there was any oblique motive onthe part of PW-2 to turn hostile and not to support the prosecution case.The real brother of deceased Ranjana - Baban Japkar (PW-2) hascategorically made a statement in his cross-examination that thedeceased Ranjana had disclosed to him that she was burnt due toexplosion of stove. PW-2 Baban (real brother of deceased) has furtherstated that accused Ramdas returned to the house on that day in theevening as he was working as a driver. This admission on the part of realbrother of the deceased creates a serious doubt about the prosecutionstory and brings the dying declarations under the clouds of suspicion.38.PW-3 Ganesh Kotkar (husband of deceased) who hadinitially recorded the history in the IPD papers with Dr. Pushpa Narote,had also categorically stated in his cross-examination that the accusedRamdas is driver by profession and on the date of incident, he was inSupa. He had further stated that on the date of incident, he and hisfather extinguished the fire. He has further stated that the partition ofthe family property was already undertaken six years ago and that therewas no dispute between him and the accused on account of the property.Both these witnesses were declared hostile by the prosecution as theyresiled from their earlier statements.39.Thus, there is no corroborative evidence so as to inspireconfidence about the truthfulness and veracity of the dying declarationsof the deceased. Thus, it would be totally unsafe to rely upon theuncorroborated evidence of the dying declarations particularly whenthere are also doubts created about the manner of recording of the dying {18} CRAPL 313.19 W 314.19 R.odtdeclarations and about the hands and legs of the deceased beingcompletely burnt.40.Another doubtful factor or circumstance is in respect ofrecording of dying declaration by Special Judicial Magistrate Mr. JayantJoshi, who has recorded dying declaration by giving requisition to doctorPW-9, Joshi had received requisition of ASI Jagtap at 7.00 p.m. at home,reached Civil Hospital at Ahmednagar and gave requisition to Dr. Jagtapat 7.05 p.m. and started recording dying declaration at 7.15 p.m., Thus,the timing appearing on aforesaid Exhibits, therefore, creates seriousdoubt about the recording of the dying declaration.41.The next circumstance is that the post mortem report doesnot show any signs of struggle on the dead body of deceased if theallegations of forcible pouring of kerosene putting deceased on fire are tobe accepted. The absence of any injuries referring to the struggle madeby the deceased, creates a doubt in the prosecution story.42.Another significant factor to create a doubt about the dyingdeclarations is the absence of examination of neighbours, who areresidents of nearby vicinity. The same is considered as one of theimportant factors which has been relied by the Division Bench of thisCourt in the matter of Sk. Gulab vs. State of Maharashtra, wherein, theDivision Bench of this Court has held as under :-“27.If the neighbours had rushed to the spot after hearingthe shouting, they would have definitely noticed presentappellant in the vicinity if he was there. Due to absence ofevidence of neighbours, it is not possible to believe thatpresent appellant was also present at the relevant time.”
Decision
{19} CRAPL 313.19 W 314.19 R.odt43.The Dying Declaration Exh.46 states that the neighbourshad rushed to the spot of incident after hearing of shouts. Thus in theabsence the evidence of neighbours, it is not possible to believe that thepresent appellants were also present at the relevant time on the spot ofincidence of mere responsible for causing burn injuries to the deceased,particularly, when the dying declarations are found to be doubtful.44.Considering the judgment reported in the matter of GanpatBakaramji Lad vs. State of Maharashtra (Criminal Appeal No. 186 of2013- Nagpur Bench) the Full Bench of this Court was of the opinionthat if the contents of the dying declaration were not read over to thedeclarant, the said factor can assume significance in a given case.Neither PW-9 Shri Joshi nor PW-6 ASI Raje, who had recorded the twodying declarations have stated in their deposition that they have readover the contents to the declarant. In the absence of same, consideringthe judgment in the matter Ganpat, the said factor of not reading overassumes significance in the facts of the present case, wherein, the dyingdeclarations are doubtful. The accused have examined DefenceWitnesses and brought their case within preponderance of probabilities.45.For the reasons aforesaid, the evidence led by theprosecution is not sufficient enough to rest conviction of the appellants. .We, thus, find that prosecution has not been able to establish offenceagainst the appellants beyond reasonable doubt. The conviction of theappellants for the offence punishable under Section 302 r/w. 34 of IPC,therefore, deserves to be quashed and set aside.46.In the result, the Criminal appeals No. 313 and 314 of 2019filed by the appellants are allowed. The impugned judgment dated28.11.2018 is quashed and set aside. The conviction of the appellants forthe offence punishable under Section 302 r/w. 34 of IPC, in Crime No. {20} CRAPL 313.19 W 314.19 R.odt151 of 2017, registered with Kotwali Police Station, Ahmednagar ishereby quashed and set aside. The appellants are acquitted of theaforesaid offence. Since the accused No.1 Ramdas is in jail, he be set at libertyforthwith, if not required in any other offence. The bail bonds of theappellants stand cancelled. Fine amount, if any, deposited be refundedto them.[MEHROZ K. PATHAN][SANDIPKUMAR C. MORE] JUDGEJUDGE.grt/-