Bombay High Court

Arjun Uddhav Arbad vs The State Of Maharashtra on 14 July, 2017

Bench: S.S. Shinde

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                                        1


                                        
      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                     CRIMINAL APPEAL NO.272 OF 2013


 Arjun Uddhav Arbad,
 Age-27 years, Occu:Agri.,
 R/o-Suralegaon, Tq-Georai,
 Dist-Beed.
                                 ...APPELLANT
                               (Orig. Accused No.1) 
        VERSUS             

 The State of Maharashtra   
                                 ...RESPONDENT

                      ...
    Mr.Satej S. Jadhav Advocate for  Appellant.
    Mr.M.M. Nerlikar, A.P.P. for Respondent.       
                      ...

               CORAM:   S.S. SHINDE AND
                        S.M. GAVHANE, JJ.

DATE OF RESERVING JUDGMENT : 10TH JULY, 2017.

DATE OF PRONOUNCING JUDGMENT: 14TH JULY, 2017.

JUDGMENT [PER S.S. SHINDE, J.]:

1. This Appeal is directed against the

Judgment and order dated 26th June, 2013, passed

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by the Sessions Judge, Beed in Sessions Case

No.174 of 2011 thereby convicting accused No.1/

Appellant - Arjun Uddhav Arbad for the offence

punishable under Section 302 of the Indian Penal

Code (for short "I.P. Code") and sentencing him to

suffer rigorous imprisonment for life and to pay

fine of Rs.5000/-, and in default, to suffer

further rigorous imprisonment for six months.

2. The prosecution case, in brief, is as

under:-

A) Deceased Sarlabai was married with

accused No.1 Arjun Arbad prior to about two years

before the incident. Soon after the marriage,

Saralabai went to reside at matrimonial home at

village Suralegaon. For some period, Sarlabai and

her husband had gone to Shikrapur for doing labour

work. Both of them stayed at Shikrapur and

thereafter returned to Suralegaon, as they could

not pull on well at Shikrapur. Accused Arjun used

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to reside with his mother Sumitrabai in the same

house at Suralegaon. It is the case of the

prosecution that the accused used to ill-treat

Saralabai on the ground that she could not cook

food properly, she used to utilize more groundnut

oil in the vegetables. The deceased tolerated the

ill-treatment and cohabited with the accused.

B) It is the further case of the prosecution

that on 1st September, 2011, deceased Saralabai

was preparing food inside the house. Her mother-

in-law Sumitrabai had gone to the river to wash

clothes. Accused Arjun returned home at about

10.00 a.m. and asked Saralabai as to why she did

not cook food. Saralabai told him that she had

cooked the food but the same was insufficient. On

hearing this, accused Arjun assaulted Saralabai.

He then took out kerosene Can and poured kerosene

on the person of Saralabai and ignited match stick

and set her on fire. As Saralabai caught flames,

she started running outside the house. The

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neighbourers gathered on the spot and and poured

water on her person and extinguished the fire.

Saralabai was then immediately shifted to Ghati

hospital, Aurangabad, where she was admitted as

in-door patient from 1st September, 2011 to 9th

September, 2011. Saralabai then succumbed to the

injuries and expired on 9th September, 2011. In

the meanwhile, PW-10 P.S.I. Ingale, who was

attached to Chaklamba police station, went to

Ghati Hospital, Aurangabad on 3rd September, 2011,

and recorded statement of Saralabai in the form of

dying declaration. On that basis, offence came to

be registered in Chaklamba police station vide

Crime No.59 of 2011 under Sections 307, 323, 504

read with Section 34 of the I.P. Code.

Subsequently Saralabai expired on 9th September,

2011 and offence was then registered under Section

302 of the I.P. Code.

C) P.S.I. Ingale himself took up the

investigation of this crime. He went to the spot

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at Suralegaon and in presence of two panchas, he

had effected the spot panchnama. The incriminating

articles like one Can, burnt pieces of Sari, match

box and two burnt match sticks were attached from

the spot. He then arrested the accused. He had

also requested the Revenue Officer to draw sketch

map of the spot. He had recorded statements of

various witnesses. The dead body of Saralabai was

referred for post-mortem examination after drawing

inquest panchnama. The seized muddemal articles

were referred for chemical analysis. Post-mortem

notes were obtained. C.A. reports were also

obtained and on completion of entire

investigation, charge-sheet was filed in the Court

of Judicial Magistrate, First Class, Georai. Since

the alleged offence under Section 302 of the I.P.

Code was exclusively triable by the Sessions

Court, the Magistrate committed the case to the

Court of Sessions.

D) A charge for an offence punishable under

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Sections 498-A, 302, 323, 504 read with

Section 34 of the I.P. Code was framed against the

accused and the same was explained to him. The

accused pleaded not guilty and claimed to be

tried, with the defence of alibi. According to the

accused, he was not at all present at the house

when the incident took place. According to him, it

is possible that the deceased might have suffered

accidental burn injuries or suicidal burn injuries

and he is not at all responsible for causing the

death of deceased.

3. In the Sessions case, there were two

accused i.e. accused No.1 Arjun s/o Uddhav Arbad,

i.e. Appellant herein, and his mother, accused

No.2 Sumitrabai w/o Uddhv Arbad. After recording

the evidence and conducting full fledged trial,

the trial Court acquitted accused No.2 -

Sumitrabai w/o Uddhav Arbad of all the charges

levelled against her. The trial Court also

acquitted accused No.1 Arjun uddhav Arbad of the

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offence punishable under Sections 498-A, 323 and

504 of the I.P. Code. However, the trial Court

convicted accused No.1 Arjun Uddhav Arbad for the

offence punishable under Section 302 of the I.P.

Code and sentenced him to suffer rigorous

imprisonment for life and to pay fine, as afore-

stated. Hence this Appeal is preferred by the

original accused No.1 Arjun Uddhav Arbad

challenging the conviction and sentence.

4. Heard learned counsel appearing for the

Appellant and learned A.P.P. appearing for the

State, at length. With their able assistance, we

have carefully perused the entire notes of

evidence so as to find out whether the findings

recorded by the trial Court are in consonance with

the evidence brought on record or otherwise.

5. The prosecution examined PW-6 Dr. Nitin

Subhash Ninal. He deposed that on 10th September,

2011 he was attached to Ghati Hospital,

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Aurangabad, as a Post Graduate Student. On that

day, he was on post-mortem duty, at Ghati Medical

College, Aurangabad. Dead body of Sarla Arjun

Arbad was brought by head constable Choudhary of

police chowky, Begampura, Aurangabad. He himself

conducted the post-mortem examination in between

7.30 a.m. to 8.30 a.m. On examination of the dead

body, he found tht there were no signs of

decomposition, post-mortem lividity cannot be

appreciated due to extensive bur all over the

back. Facial features were burnt, eyes open,

pupils dilated, cornea clear, mouth closed, tongue

inside, oral cavity, there was no oozing. All

limbs were extended position.

. PW-6 Dr. Nitin Ninal further deposed that

on external examination, he noticed following

injuries:-

"92% superficial to deep burn present over

body surface area, deep burn seen on chest,

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abdomen, back, both lower limbs, right

upper limbs which shows greenish yellowish

foul smelling discharge at places, evidence

of vital reaction present. Rest burns were

superficial and showing brownish

discolouration with mild smelling at

places. The percentage of burn injuries

noticed by him is as under:

                     Head,                       5%
                     neck face
                     Right                       6%
                     upper 
                     limb
                     Left                        8%
                     upper 
                     limb
                     Chest   &                   18%
                     abdomen
                     Back                        18%
                     Right                       18%
                     lower 
                     limb
                     Left                        18%
                     lower 
                     limb
                     External                    1%
                     genitals
                     Total:                      92%





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 .                  PW-6   Dr.   Nitin   Ninal   further   deposed

that Spread area - part of forehead and scalp,

right hand, part of dorsum of right forearm with

evidence of treatment in the form of intravires

mark over dorsum of right hand, reddish. All the

above injuries were ante-mortem. He further

deposed that in his opinion, cause of death was

"septicemia due to burns". He deposed that if

kerosene is poured on the person of victim and she

is set ablaze, then such type of injuries may

occur.

. During the course of cross-examination

PW-6 Dr. Nitin Ninal admitted that if there are

injuries to vital part, and that too 92% burn

injuries then process of dehydration starts

immediately. He further admitted that in such

cases, and if the water level in the body is not

maintained, the patient may go in shock. In such

cases due to inhalation of smoke inside the body,

patient goes in suffocation. In case of 92% burns,

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the patient gets severe pains. He further admits

that in such cases if immediate treatment is not

given to the patient then he is likely to go in

shock.

6. PW-1 Vishwanath Ghansham Bhandare is a

panch to the spot panchnama Exhibit-21. During the

course of his cross-examination, he stated that he

himself and Shivaji (another panch) were passing

from the Grampanchayat Office, at that time police

called them and asked them to sign the panchnama

and obtained their signatures near Grampanchayat

office. He further stated that he himself did not

go to the house of accused along with police. He

further admitted that kerosene can and match box

are available at everybody's house. Thus it is

clear from the evidence of PW-1 that he was not

present on the spot when the spot panchnama was

effected and his signature was obtained by the

police near Grampanchayat office.

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7. The prosecution examined PW-2 Bankat

Bhujangrao Kadam. He deposed that he knows accused

Arjun Arban who resides near his house. Accused

Arjun was married with Saralabai prior to two

years and she was carrying at the time of

incident. On 1st September, 2011 he came near

Maruti temple at about 10.00 to 11.00 a.m. They

saw the flames on the road, they then rushed to

the spot, they saw Saralabai had caught flames.

They tried to extinguish the fire with the help of

blanket by covering her. When asked, this witness

was unable to say how Saralabai suffered burn

injuries. During the course of cross-examination,

PW-2 Bankat Kadam stated that he did not see Arjun

on the spot. Arjun had gone to Georai.

. It is clear from the evidence of PW-2

Bankat that he reached on the spot of incident

after Saralabai sustained burn injuries and he was

unable to state how Saralabai suffered burn

injuries. During the course of cross-examination,

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PW-2 Bankat specifically stated that he did not

see Arjun on the spot and that Arjun had gone to

Georai.

8. The prosecution examined PW-3 Bhausaheb

Shamrao Nalawade. He deposed that the incident

took place on the day of "Ganesh Chaturthi". He

was at his house. On hearing shouts he rushed

towards the spot. He saw that wife of Arjun had

caught fire and she was lying on the ground. The

fire was extinguished by the adjoining

neighbourers. When asked, he was unable to say how

Saralabai suffered burn injuries. During his

cross-examination, PW-3 Bhausaheb admitted that

brother-in-law of Saralabai, mother-in-law as well

as Lahurao Laxman Arbad, Hanumant Kisanrao Arbad,

Satish Nalawade went in the Jeep when Saralabai

was shifted to the hospital.

. Upon careful perusal of the evidence of

this witness PW-3 Bhausaheb Nalawade, it is clear

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that this witness reached on the spot when the

alleged incident was over and he was unable to

state how Saralabai suffered burn injuries. This

witness does not state that when he reached on the

spot, accused Arjun was present on the spot.

9. PW-4 Ankush Santram Kadam deposed that on

the day of incident, at about 10.00 a.m. he

himself and Shamrao Bhandare were sitting in front

of Maruti temple. They saw the flames coming from

inside the house of Arjun. They rushed towards the

spot. The wife of Arjun had caught flames. They

then extinguished the fire. During the course of

cross-examination, PW-4 Ankush stated that at the

time of incident about 100 persons had gathered on

the spot. At that time Sarala was unconscious, so

she did not speak anything.

. Upon careful perusal of the evidence of

PW-4 Ankush, it is clear that he has also not

witnessed the incident and he reached on the spot

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of incident when Saralabai sustained burn

injuries. During his cross-examination, he stated

that at the time of incident about 100 persons had

gathered on the spot and at that time Sarala was

unconscious, so she did not speak anything.

10. The prosecution examined PW-5 Maharudra

Pandurang Arbad. He deposed that accused Arjun is

son of his brother Uddhav. On 1st September, 2011,

he had gone to Mahakala Sugar Factory, Ambad. He

further deposed that he received phone message of

Satish Nalawade that Saralabai had set herself on

fire. During the course of his cross-examination,

PW-5 Maharudra admitted that Saralabai was

pregnant and due to insufficient blood supply,

there were pains in the stomach. He further

admitted that Saralabai was of weak physic and

Arjun had given treatment to Sarala at Shikrapur

and spent huge amount for treatment. He further

admitted that Sarala was hot tampered lady.

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. Upon careful perusal of the evidence of

this witness PW-5 Maharudra, it reveals that he

was not in the village when the incident took

place and he further deposed that he received

phone message of one Satish Nalawade that

Saralabai had set herself on fire. During his

cross-examination, he admitted that accused Arjun

had given treatment to Sarala at Shikrapur and

spent huge amount for treatment, and further

admitted that Sarala was hot tampered lady.

11. The prosecution examined PW-7 Gajanan

Anna Bedre, brother of deceased Sarala. He deposed

that the incident took place on 1st September,

2011. He was at Patharwala. His father received

phone message that Saralabai had suffered burn

injuries and that she was admitted in Ghati

Hospital, Aurangabad. Thereafter, he himself, his

father Anna and mother Sumanbai went to Ghati

Hospital, Aurangabad. They then made enquiry with

Sarala. She told them that she was cooking food,

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Arjun came back to house and asked her why she did

not cook food, she told her husband that the food

was insufficient, she told that kerosene Can was

kept under Cot. He further deposed that Sarla told

them that accused Arjun poured kerosene from the

said can on her person and ignited match stick and

set her on fire and ran away.

. During the course of cross-examination,

PW-7 Gajanan stated that they have not lodged

complaint on the day when Sarala was admitted in

the hospital. He further stated that they have not

lodged complaint on the next day of the incident.

He further stated that on 1st September, 2011 when

they went to the hospital, on the same day

statement of Sarala was recorded. He does not know

if her statement was recorded at 10.00 p.m. He

denied that on the day of incident in the morning

Arjun had left home and had gone to Georai. He

denied that Sarala was not in a position to speak

when they went to the hospital. He further stated

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that at the time of statement, he had informed the

police that accused used to harass his sister for

demand of money, he had also informed the police

that Salara told them that her husband used to

assault her under intoxication, he had also stated

to police that Sarala was pregnant at the time of

incident, he had also stated to police that after

seven days of incident, Sarala gave birth to

female child. However, he was unable to state why

all the above stated facts were not mentioned in

his statement recorded by the police.

. Thus upon perusal of the evidence of this

witness, it is clear that PW-7 Gajanan has stated

in his cross-examination that on 1st September,

2011 itself first dying declaration of Saralabai

was recorded. If his version is accepted to be

true, then the prosecution has not placed on

record the first dying declaration of Saralabai

which was recorded on 1st September, 2011. During

the course of his cross-examination, several

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contradictions and omissions were brought on

record by the defence.

12. The prosecution examined PW-8 Dr. Abhijit

Kashinath Chinchole. He deposed that on 1st

September, 2011 he was working as Junior Resident

at Ghati Hospital, Aurangabad. On that day Sarala

Arjun Arbad was admitted in Ghati Hospital on

account of burn injuries. On 3rd September, 2011

police inspector from Chaklamba police station

came to Ghati Hospital. The police inspector had

requested him to examine the patient Sarala with a

view to find out whether she was conscious and

oriented to give statement. He then examined

Sarala and found that she was conscious and

oriented to give statement. Police Inspector

Ingale then recorded statement of Sarala. Below

the statement he has given his endorsement that

patient was conscious and oriented. After the

statement was completed again he examined Sarala

and found that she was conscious. Accordingly he

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had made endorsement below the statement. On 6th

September, 2011 there was abortion of Sarala. Due

to burn injuries suffered by patient, child was

aborted. He further deposed that Saralabai expired

on 9th September, 2011.

. During the course of cross-examination,

PW-8 Dr. Abjijit admitted that in case of 90 to

92% burn injuries there is dehydration. Due to the

dehydration water level in the body is reduced.

The burn patients get severe pains and to minimize

the pains, pain killers are administered to such

patients. He further admitted that in case of 90

to 92% burn injuries, if immediate treatment is

not received by the patient, then he may go in

shock. He further admitted that if patient goes in

shock, he becomes unconscious. He stated that he

has not mentioned in the case papers that he has

examined the patient. He stated that he has not

mentioned in the endorsement that patient was

physically and mentally fit to give statement. He

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has stated that he has not specifically mentioned

that patient was physically and mentally fit

throughout the statement. He stated that patient

was admitted by her husband. He admitted that the

relatives of the patient had arrived in the

hospital. He admitted that there was dressing to

the hands and legs of the patient.

13. PW-9 Sudhakar Lalasaheb Choudhary, police

head constable deposed that on 9th September, 2011

he was posted at police chowki, at Ghati Hospital,

Aurangabad. On that day Sarala Arjun Arbd expired

due to burn injuries and accordingly he gave

report to Begampura police station and on the

basis of his report, Accidental Death was

registered.

14. The prosecution examined PW-10 Eknath

Kashinath Ingale, P.S.I. Beed City police station.

He is investigating officer in this case. He

deposed that on 3rd September, 2011 he was

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attached to Chaklamba police station as P.S.I. On

3rd September, 2011 he went to Ghati Hospital,

Aurangabad for recording the statement of burn

patient Sarala Arjun Arbad. After going to Ghati

Hospital, he issued letter to Medical Officer

requesting him to examine the patient to find out

if she was able to give statement. Doctor examined

the patient and gave endorsement that she was fit

to give statement. Thereafter he had recorded

statement of Sarala Arbad as per her version. He

deposed that she had disclosed that on 1st

September, 2011 she was cooking food in the

kitchen, her mother-in-law had gone for washing

clothes on the river, her husband returned back to

home, she told her husband that the prepared food

was less and so she was cooking the food,

thereupon her husband poured kerosene and set her

ablaze by igniting match stick. He further deposed

about the manner in which he has carried out the

investigation.

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. During the course of cross-examination,

PW-10 Eknath Ingale admitted that while issuing

any letter from the police station, entry is

recorded in inward and outward register. He

admitted that on the letter issued to doctor for

examination of patient, inward outward number is

not mentioned. He further stated that he has not

recorded any separate noting regarding the fact

that he himself has verified from the patient

about her physical and mental condition. He

admitted that the endorsement of the doctor was

not obtained at the beginning of the statement. He

further admitted that below the dying declaration,

on the right side portion there is complete thumb

impression and on the left side portion there is

half thumb impression. He denied that both the

thumb impressions are of different persons. He

denied that Sarala was in unconscious condition

and was unable to speak. He further admitted that

he did not take any efforts to get the dying

declaration recorded from the Executive

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Magistrate.

15. Upon careful perusal of the dying

declaration Exhibit-48, recorded by the

Investigating Officer PW-10 Eknath Ingale, it is

stated by Saralabai that her marriage was

solemnized with Arjun two years prior to the

incident. She stated that she was carrying

pregnancy of seven months. She further stated

about the earlier quarrel took place between

herself and her husband on the day of Pola

festival. About the alleged incident, she stated

that, on 1st September, 2011 at about 10.00 to

11.00 a.m. she was cooking the food. Her mother-

in-law Sumitrabai had gone to the river for

washing clothes. At that time her husband Arjun

came in the house and asked her why she has not

cooked the food. She replied that she had already

cooked the food but the same was not sufficient

and therefore she was again cooking the food. Her

husband got annoyed and started beating her.

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Thereafter her husband Arjun took out the kerosene

can and poured the kerosene on her person and set

her ablaze by igniting match stick. Due to burn

injuries she started shouting and came out of the

house and fell on the road. Her relatives

extinguished the fire by pouring water on her

person. She further stated that her mother-in-law

used to ill-treat and abuse her on trifle grounds.

She has complaint against her husband Arjun Uddhav

Arbad and mother-in-law Sumitra Uddhav Arbad.

. Upon careful perusal of the dying

declaration, it appears that there are two thumb

impressions on the same. One full thumb impression

is at right side of the dying declaration, and

another half thumb impression is at the left side

of the dying declaration.

16. The defence has examined DW-1 Bhausaheb

s/o Bhagwantrao Londhe. He deposed that there was

Ganesh Chaturthi on 1st September, 2011. On that

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day accused Arjun came to his house at 6.45 a.m.

He himself and Arjun wanted to visit Georai to

bring money from one Kumbhar. He himself and Arjun

then started for Georai on his motorcycle bearing

registration No.MH-12-4361. They both started from

Suralegaon at 7.00 a.m. and reached Georai at 9.00

a.m. He then gave his motorcycle for servicing. At

10.00 a.m. servicing was completed. Thereafter he

had called Kumbhar on phone from his Mobile

No.9764013719. Kumbhar then came to Hotel at

Kolher road. They met Kumbhar at about 11.00 a.m.

He then received phone call from Suhas Kadam from

Suralegaon informing him that wife of Arjun had

suffered burn injuries. He then informed accused

Arjun about the incident. Said Kumbhar then paid

Rs.4000/- to them. He again received phone call

from Bhagwan Arbad, who told them to come to

Pachond and also told him that they were taking

wife of Arjun to Aurangabad for treatment. He

himself and Arjun then went to Pachod on

motorcycle. They saw that wife of Arjun had

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suffered burn injuries. They saw Lahurao Arbad,

Bhagwan Arbad, Hamumantrao Arbad, Satish Nalawade

and Sumitrabai Arbad were in the Jeep. He further

deposed that from Pachod Arjun went to Aurangabad

in the same Jeep and he then returned back to

Suregaon. This witness was extensively cross-

examined by the prosecution but his version was

not at all shattered and nothing contrary has

been brought on record during his cross-

examination by the prosecution.

17. We have discussed the evidence of all

the witnesses in detail. PW-2 Bankat is an

independent witness, who immediately rushed to the

spot when the victim caught fire. He specifically

admitted in his cross-examination that he did not

see Appellant Arjun on the spot and that the

Appellant had gone to Georai. He further deposed

in his examination-in-chief that he cannot say how

Saralabai suffered burn injuries. PW-3 Bhausaheb,

another independent eye witness, also deposed in

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his examination-in-chief that he cannot say how

Saralabai suffered burn injuries. PW-3 Bhausaheb

has admitted in his cross-examination that after

the incident the victim did not talk anything to

anybody. PW-4 Ankush, another independent eye

witness admitted in his cross-examination that the

victim was unconscious and she did not speak

anything and further stated that about 100 persons

immediately gathered on the spot. PW-5 Maharudra

stated in his examination-in-chief that one Satish

Nalawade informed him that the victim Saralabai

set herself on fire. In cross-examination he

admitted that the victim was pregnant and due to

insufficient blood and weakness there were pains

and the Appellant had spent huge amount for her

treatment. He also admitted that the victim was

hot tampered lady. Upon careful perusal of the

oral testimony of the Medical Officer PW-6 Dr.

Nitin Ninal, he stated that victim suffered 92%

burn with evidence of vital reaction due to deep

burns. The area of the body spared from the fire

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is forehead scalp, right hand and forearm, and

therefore the possibility of suicidal burns cannot

be ruled out. He further admitted that patient was

admitted by her husband. PW-7 Gajanan is brother

of deceased Saralabai. According to him, the

statement of deceased was recorded on 1st

September, 2011 itself in the hospital. However

the said statement is not placed on record by the

prosecution. There is force in the argument of the

learned counsel appearing for the Appellant that

the first statement of the deceased which was

recorded on 1st September, 2011 itself, has been

suppressed by the prosecution being not favourable

to the prosecution. Learned counsel appearing for

the Appellant has rightly argued that, all the

above circumstances point out towards a

possibility of the deceased sustaining suicidal or

even accidental burns.

18. No doubt the dying declaration Exhibit-48

is corroborated by the oral testimony of PW-7

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Gajanan. He deposed that when he visited the

hospital when Saralabai was admitted in hospital,

she has given oral dying declaration to him. Still

it is not safe to rely upon the dying declaration

Exhibit-48. The prosecution has not convincingly

brought on record that while giving dying

declaration, Saralabai was in a fit mental

condition. The medical evidence brought on record

clearly reveals that she sustained 92% burn

injuries. During the course of cross-examination,

PW-8 Dr. Abjijit admitted that in case of 90 to

92% burn injuries there is dehydration and due to

the dehydration water level in the body is

reduced. He further admits that the burn patients

get severe pains and to minimize the pains, pain

killers are administered to such patients. He

further admitted that in case of 90 to 92% burn

injuries, if immediate treatment is not received

by the patient, then he may go in shock, and if

patient goes in shock, he becomes unconscious.

The eye witnesses who rushed to the spot after the

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incident, categorically stated that Saralabai was

not in a condition to speak and she was

unconscious after sustaining burn injuries. The

possibility of tutoring also cannot be ruled out

as Saralabai was admitted in the hospital on 1st

September, 2011 and her dying declaration was

recorded on 3rd September, 2011 and during the

intervening period, her brother and parents were

present in the hospital. After careful perusal of

the dying declaration at Exhibit-48, it appears

that there are two thumb impressions of the

deceased, one full thumb impression is at right

side of the dying declaration and another half

thumb impression is at left side. The prosecution

has not satisfactorily explained why two thumb

impressions of the deceased were taken on the said

dying declaration. Further during the course of

cross-examination, PW-8 Dr. Abjijit admitted that

there was dressing to the hands and legs of the

patient. Thus, there is force in the argument of

the counsel appearing for the Appellant that there

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is interpolation in the dying declaration Exhibit-

48 and there is every possibility that the thumb

impressions are not of the deceased.

19. Admittedly there is no eye witness to the

incident and the prosecution case is based only on

the circumstantial evidence and the sole dying

declaration of deceased Saralabai, that too,

recorded by the Investigating Officer.

Investigating Officer PW-10 Eknath Ingale,

categorically admitted in his cross-examination

that, he did not take any efforts to get the dying

declaration recorded from the Executive

Magistrate. In view of the exposition of law by

the Supreme Court in the case of Khushal Rao vs.

State of Bombay1, the dying declaration recorded by

a competent Magistrate in the proper manner, that

is to say, in the form of questions and answers,

and, as far as practicable, in the words of the

maker of the declaration, stands on a much higher

1 A.I.R. 1958 S.C. 22 (V 45 C 4)

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footing than a dying declaration which depends

upon the oral testimony which may suffer from all

the infirmities of human memory and human

character.

20. The defence taken by the accused is of

alibi. In support of his defence, the accused

examined DW-1 Bhausaheb Londhe. DW-1 Bhausaheb has

categorically stated that on the day of incident

since morning hours till they came to know about

the incident in noon hours, he was with the

accused Arjun and they both had gone to Georai on

his motorcycle. At Georai he received phone call

from one Suhas Kadam who informed that wife of

Arjun suffered burn injuries. The trial Court has

wrongly discarded the evidence of the defence

witness DW-1 Bhausaheb on the surmises and

conjectures. The trial Court has observed that

even if it is accepted that Arjun was accompanied

by Bhausaheb in the morning to Georai, it is

probable that Arjun might have returned back home

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at about 10.00 a.m. as stated by deceased

Saralabai in her dying declaration. The reasoning

given by the trial Court is not proper. The

defence of alibi taken by the accused also appears

to be probable.

21. The trial Court has not appreciated the

entire evidence brought on record in its proper

perspective and reached to a wrong conclusion. The

findings recorded by the trial Court are not in

consonance with the evidence brought on record.

The trial Court has not believed the oral

testimony of the prosecution witnesses so far as

the charge under Section 302, 498-A, 323, 504 of

the I.P. Code as against accused No.2 Sumitrabai

and acquitted her from the said offences. Even the

Appellant is acquitted from the offence punishable

under Section 498-A of the I.P. Code. However, on

the same set of evidence convicted the accused for

the offence punishable under Section 302 of the

I.P. Code. Since the Appellant is acquitted from

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the offence punishable under Section 498-A of the

I.P. Code, the motive as per the prosecution case,

for the commission of alleged offence by the

Appellant punishable under Section 302 of the I.P.

Code, is not at all established.

22. In the light of discussion in foregoing

paragraphs, an inevitable conclusion is that the

Appellant is entitled for the benefit of doubt.

Hence we pass the following order:

O R D E R

(I) The Criminal Appeal is allowed.

(II) The impugned Judgment and order dated 26th June, 2013, passed by the Sessions Judge, Beed in Sessions Case No.174 of 2011, to the extent of convicting and sentencing the accused - Arjun Uddhav Arbad for the offence punishable under Section 302 of the Indian Penal Code, is quashed and set aside.

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(III) The Appellant - Arjun Uddhav Arbad is acquitted of the offence punishable under Section 302 of the Indian Penal Code. Fine amount if deposited as per impugned Judgment and order, be refunded to the Appellant.