JUDGMENT R.C. Chavan, J.
1. By this appeal, appellant challenges his conviction for the offence punishable under section 302 of the Penal Code and the sentence of imprisonment for life inflicted upon him.
2. Appellant and his wife came to be prosecuted for setting their son-in-law on fire and causing his death at 1.00 a.m. on 5/7/1996. The victim Babasaheb and appellant's daughter Shobha were residing with their children in one of the rooms of the appellant's house. Babasaheb was addicted to liquor and used to pick up quarrels. Even on the night of 4/7/1996, at about 9.00 p.m., deceased Babasaheb quarrelled with his wife. It is the prosecution case that the appellant and his wife poured kerosene on Babasaheb when he was asleep and set him on fire. The flames made Babasaheb wake up. He found his parents-in-law standing by his side. He screamed and ran out of the house. His wife Shobha extinguished the flames. He was then taken to hospital where he succumbed to his injuries at about 10.00 a.m. on 5/7/1996. His statement had been recorded by the police whereupon an offence was registered.
3. In course of investigation, police recorded statements of witnesses, seized incriminating articles, sent the incriminating articles to the Forensic Science Laboratory, performed necessary panchanamas, caused the post-mortem to be conducted and on completion of investigation arrested and charge-sheeted the accused. The learned Judicial Magistrate, First Class, Shirala, District Sangli, committed the case to the Court of Sessions at Sangli.
4. The Sessions Judge Sangli, charged the appellant and his wife of murder. The accused pleaded not guilty to the said charge and hence were put on trial. Prosecution examined in all 7 witnesses in its attempt to bring home guilt of the accused. Upon consideration of prosecution evidence, the learned Sessions Judge, Sangli acquitted the appellant's wife, but held the appellant guilty of committing murder and convicted him of the offence punishable under section 302 of the Penal Code and sentenced him to suffer imprisonment for life and fine of Rs 500/-. Hence, this appeal.
5. We have heard the learned advocate Shri R.V. More for the appellant and Shri D.R. More, the learned Additional Public Prosecutor for the State. The learned advocate for the appellant wondered as to how the learned Sessions Judge interpreted the same dying declaration attributing same role to the appellant and his wife to acquit the appellant's wife and to convict the appellant. There is no dispute that the victim died of 98% burns as may be seen from the evidence of P.W. 2 -Dr. Naikwade and the notes of post-mortem examination at Exhibit-8 proved by P.W. 2 -Dr. Naikwade. However, the authorship of these burns is unclear even after reading the prosecution evidence charitably.
6. P.W. 1 -Shivaji is a panch of the panchanama of spot and seizure made at the spot. His evidence is unhelpful to indicate complicity of the appellant.
7. P.W. 3 -Dnyanu Patil is the father of the victim. The story given by him is, indeed, incredible. He stated that he resides at Fupire which is about one and half kilometres from Shirala where the incident took place. According to him, on the night of 4th June, he was informed by the Police Patil Vishnu Kale and Kotwal Shamrao Patil that his son had sustained burn injuries. They asked Dnyanu to go to his son's place. However, his son and daughter-in-law themselves came to his house (obviously after covering distance of one and half kilometres on foot!).
8. He (P.W. 3 -Dnyanu) claims to have asked his son as to how he had sustained burn injuries whereupon his son told him that his parents-in-law had set him ablaze. He then claimed to have taken his son to Civil Hospital, Sangli. It may thus be seen that the account of the incident conveyed to P.W. 3 -Dnyanu by the victim does not make any distinction in the roles of the appellant and his wife. Lengthy cross-examination of this witness does not throw any additional light on the incident but indicates brushing of all his sons on the wrong side of Law. It also shows that Dnyanu's sons were not residing with Dnyanu.
9. P.W. 4 -PSI Gavandi stated that on 5/7/1996, in the morning, he was called to the Police Station by Police Station Officer who told him to record the dying declaration of Babasaheb. Accordingly, he went to the hospital and requested Dr. Shroff who was on duty to examine the patient and certify whether the patient was fit to make statement. After Dr. Shroff gave necessary certificate, he (P.W. 4 -PSI Gavandi) recorded the dying declaration of Babasaheb and then obtained impression of left big toe of the victim since both the palms of victim were burnt. This statement was duly proved by the witness (P.W. 4 PSI Gavandi) at Exhibit-14. The evidence of this witness would show that recording of dying declaration commenced at 8.00 a.m. and took about 45 minutes. In this dying declaration, the victim had merely stated that when he suddenly awakened on finding himself in flames, he found his father-in-law and mother-in-law standing before him. He does not say that they had set him on fire, or were seen with any incriminating articles like a kerosene Can or match box.
10. P.W. 5 -Dr. Shroff corroborated P.W. 4 -PSI Gavandi regarding this dying declaration . It may be seen from the dying declaration that Dr. Shroff has made one endorsement at the top, showing that the victim was conscious, oriented and in a condition to give statement, that the statement was taken in doctor's presence and that the patient was conscious throughout. Above this endorsement bears the time "8.00 a.m. to 8.45 a.m.". It seems that the time "8.45 p.m." was put by the witness (P.W. 5 -Dr. Shroff) after recording of dying declaration was over. Also, part of the endorsement that "the patient was conscious throughout" must have been put after recording of the statement was over. This was not an ideal way of certifying fitness of the patient throughout the period of recording of dying declaration. The Medical Officer should not have taken short-cut of making only one endorsement. Had Dr. Shroff taken trouble of making another endorsement at the end of the statement at 8.45 a.m., the suspicion in respect of the certificate of fitness could have been removed.
11. This suspicion gets accentuated because of P.W. 5-Dr. Shroff's cross-examination. In cross-examination, Dr. Shroff admitted that at a.m,. on 5/7/1996 the patient was semi-unconscious. Thus, within five minutes, after the recording of dying declaration was over, the patient was semi-unconscious. This would cast doubt about his consciousness or orientation in making the statement up to 8.45 a.m. At 9.00 p.m., the patient was gasping and the symptoms noted by doctor at 10.00 a.m. were suggestive of death. It is well known that even after symptoms of death are noted by doctors, an attempt to resuscitate the patient is made and only after it fails, death is certified. Thus, before 10.00 a.m., the patient must have passed out. In these circumstances orientation and fitness certified by Dr. Shroff upto 8.45 a.m. is doubtful and the value of the dying declaration is consequently eroded.
12. In any case, the dying declaration does not attribute any positive and distinct role to the appellant. It shows that the appellant as well as his wife were standing when the victim awoke in flames. The victim is said to be a drunkard. It may be that the victim took more time to awaken than his parents-in-law who rushed on seeing the flames, even if the dying declaration is taken as correct, with cause of flames continuing to be shrouded in mystery.
13. P.W. 6 -Vishnu Kale is a neighbour who states that, at about 1.00 a.m., the appellant's wife came to his house shouting and asking P.W.6 to get up. She told P.W. 6 that her son-in-law has suffered burns. He then went to inform the victim's father at Village Fulpire at the instance of victim's wife Shobha. He states that the victim and his wife came walking to the house of victim's father. This witness (P.W. 6 Vishnu) too stated in cross-examination that the victim used to drink. P.W. 6 -Vishnu claims to have asked the victim as to how he sustained burns when the victim merely told him that he had sustained burns without indicating cause. Thus, the evidence of P.W. -Vishnu would not support the prosecution case or theory about involvement of the appellant in burn injuries sustained by the victim.
14. P.w. 7 -PSI Nikam is an Investigating Officer and his evidence does not add any thing to what other witnesses had stated.
15. The learned Sessions Judge rejected the theory of Babasaheb having attempted to commit suicide out of frustration. He also accepted the explanation of the prosecution for not examining the appellant's daughter and the victim's wife Shobha because Shobha was not expected to support the prosecution. Just as Shobha is daughter of the appellant, she was also the wife of victim and, therefore, she ought to have been given a chance to give her version of the incident since she was the first person to see the dramatis personae on the incidental night.
16. The learned trial judge extended the benefit of doubt to accused No. 2 but not to the appellant accused No. 1, because accused No. 2 had gone to the house of Vishnu to tell him that Babasaheb had suffered burns, indicative of her not taking active part in inflicting burn injuries on the victim. This is rather queer. It is just possible that accused No. 1 chose to be near the victim when his wife went to call the neighbour. Therefore, the reasons which persuaded the learned trial judge in acquitting the appellant's wife should also have held good in respect of the appellant.
17. In any case, as the discussion in respect of evidence of P.W. 5 -Dr Shroff would show the possibility of dying declaration at Exhibit-14 having been made by victim in conscious state of mind is bleak. His father P.W. 3 Dnyanu's claim that the victim told him that victim's in-laws set him on fire is also difficult to believe. The victim could have made similar statement to P.W. 6 -Vishnu who came to the spot immediately. Therefore, in our opinion, the learned trial judge was not justified in treating the appellant differently from his wife when both were attributed the same role by the victim in the dying declaration at Exhibit-14, which itself is of doubtful quality.
18. Hence, we allow the appeal, set aside the conviction of the appellant for offence punishable under section 302 of the Penal Code and resultant sentence imposed upon him. His bail bonds shall stand cancelled and fine, if any, paid by him shall be refunded to him.