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Judgment
This is an appeal by the accused against his conviction
u/s 302 IPC and sentence of imprisonment for life passed by 3 rd
Ad-hoc Addl. Sessions Judge, Aurangabad, on 10.12.2002 in Sessions
Case No. 235 of 2002.
The facts relevant for deciding this appeal may be stated as
follows :
The FIR is registered on the basis of report submitted by
Asst. Sub-Inspector Shinde at Jawahar Nagar Police Station,
Aurangabad at C.R. No. I-17/2002 u/s 302 IPC . His report shows
that, on 24.01.2002 at night time one Ashwini aged 30 years, R/o.
Kabra Nagar (Indira Nagar), Aurangabad claimed to be wife of Afsar
Khan (the accused) was brought in Ghati Hospital at Aurangabad in
burnt condition. She had given oral dying declaration to Medical
Officer that, on that night at 08:00 p.m. she had a quarrel with her
husband and he had poured kerosene on her person and set her on
fire. She had sustained 100% burns. Then she was shifted to burn
ward and by the time Special Executive Magistrate reached the
hospital at 10:45 p.m. she was unconscious. She died at 11:00 p.m.
due to 100% burns. At the same time, her husband Afsarkhan was
admitted in the same hospital with 70% burns. His statement was
recorded. On the basis of this report, PW9 PI-S.B. Ambildhage
conducted investigation. He visited the spot and seized kerosene can
and match box from the spot. He recorded the statement of material
witnesses. He arranged to conduct autopsy on the dead body and
collected medical certificate of the accused. After recording statement
of material witnesses, he submitted charge-sheet in the court.
In due course, the case was committed to the court of
sessions. The ld. IIIrd Adhoc Addl. Sessions Judge, Aurangabad
framed charge u/s 302 at Exh. 6. The prosecution examined 9
witnesses. The main reliance is on the oral dying declaration in the
form of history given by the patient to PW3 Dr. Varsha Kalyankar.
The defence of the accused is of total denial. The ld. trial Judge
accepted the evidence and convicted the accused. Hence this appeal.
Since the ld. advocate for the accused did not remain
present, we have appointed Shri. G. B. Patunkar as advocate for
accused at state expenses. He has taken us through the evidence on
record. He argued that, deceased Ashwini had 100% burns and there
is no proper evidence to show that she was physically and mentally
fit to make statement. The dying declaration recorded is cryptic and
incomplete. It does not show the full name of the deceased Ashwini.
It is material as she has stated that her husband had killer her. It is
the defence of the accused that, he is not the husband of deceased
Ashwini and there is admission that one Devanand Garud was her
husband. He argued that, the circumstances indicate that, the
deceased might not have given any dying declaration. The evidence
of PW3 Dr. Varsha Kalyankar i s not rel iable. There is no evidence to
show that, the deceased Ashwini was residing along with the
accused. Hence, the accused deserves to be acquitted. He relied on
following rulings :
(i) Ashok Kumar Vs. District Magistrate, Basti AIR 2012 (S upp .) SC 31
(ii) Sri Kajal Sarkar Vs. State of Assam 1993 Cri. L.J. 3869
. It is held in these cases that dying declaration is not
complete unless full name, address of the person are given in it.
Therefore only because deceased in his dying declaration uttered first
name similar to that of accused, it is not proper to accept the
prosecution version based on such incomplete dying declaration that
accused were culprits who caused injury to deceased.
Per contra, ld. APP Shri. R. V. Dasalkar supported the
judgment. He argued that, the history was recorded by Dr. Varsha
Kalyankar. She is independent witness and had no reason to falsely
implicate anybody. Her evidence is supported by the fact that the
accused had also sustained 70% burn injuries at the same time. Both
were residing together and though deceased Ashwini was not wife,
she was concubine of the accused. She had sustained injuries at her
house where the accused was residing and therefore the ld. trial
Judge has rightly believed the witnesses and there is no scope for
interfering with the conviction and sentence.
The points for our consideration with our findings thereon
are as follows :
Sr.No. Point Finding 1 Whether deceased Ashwini met with Not proved. homicidal death?
2 Whether the accused had Not proved. committed murder of Ashwini by setting her on fire? 3 What order? The appeal is allowed. The conviction of the accused is set aside and he is acquitted. REASONS
There is evidence and not disputed that, the deceased
Ashwini had sustained 96% burns. The prosecution has examined
PW2 Dr. Bhale, who has conducted post-mortem on the dead body on
25.01.2002. His PM report is at Exh. 17. The deceased had 96%
burns. There was kerosene smell found on her scalp hair. It is
therefore clear and not in dispute that deceased Ashwini must have
been drenched in kerosene and thereafter received burns which
caused her death.
The main issue is whether it was accidental, suicidal or
homicidal burns.
The prosecution has examined 9 witnesses and produced
documents which can be grouped as follows :
[I] Dying Declaration :
(i) PW3 Dr. Varsha Kalyankar, who was Casualty Medical
Officer. PW4 ASI Gangawane brought Ashwini in burnt
condition to her. She made inquiry with her and recorded
her history as per Exh. 19. It shows that, the deceased
Ashwini had told her that, her husband had poured
kerosene on her person at 08:30 p.m. And set her on fire.
The name of the patient is shown as Ashwini Ayyub Khan,
aged 30 years, residing at Kabra Nagar.
(ii) PW1 Dr. Sachin Ingle, who had attended the patient in
burn ward from 09:50 p.m. till her death at 11:00 p.m.
The case papers maintained by him are at Exh. 13.
[II] Material Witnesses:
(i) P.W.4 Rangnath, A.S.I. was a very material witness. As
per directions of P.S.O., he had gone to the house of the
deceased and brought her in burnt condition to the
hospital, but he has not stated details about the place
and has not made any enquiry about the cause of burns
with the deceased in transit.
(ii) He had also examined the accused, who was admitted in
burn ward with 70% burn injuries. He had stated that,
he had sustained burns due to accidental blasting of
stove. He was also referred to Burn Ward by PW3 Dr.
Varsha Kalyankar after preliminary examination.
(iii) PW6 Aruna Kasbe is neighbour. She has stated that, she
was staying in Indira Nagar and Ashwini and Ayyub were
her neighbours for two months before the incident. She
had heard shouts of Ashwini at 08:00 p.m. and had seen
her in flames. Due to fear, she did not go near her.
Learned APP cross-examined her. She denied that, she
had heard the quarrel between deceased Ashwini and
accused and saw that accused was extinguishing the
flames of Ashwini. P.W.6 Aruna had seen Ashwini
catching fire, but she has not stated that the accused was
present at that time in the house. P.W.4 Rangnath had
brought Ashwini from the house to the hospital, but he
also has not stated that the accused was present in the
house. There is no documentary evidence to show that
the accused and Ashwini were co-habiting together as
husband and wife.
(iv) PW7 Shrirang is also the neighbour of Ashwini. He
stated that he was tenant of landlady Sayeeda and Afsar
was residing in adjoining wada (edifice). On the
material day at 08:00 p.m., he had heard shouts of
Ashwini and she coming out with burn injuries.
However, there were shouting as ''tGkyh&tGkyh'' (got
burnt). He has also resiled from his statement. He has
denied the prosecution story.
[III] Medical Evidence :
P.W.2 Dr. Swaroop Bhale had conducted post mortem
showing 96% burns. Post mortem notes are at Exh.17.
She died due to shock due to burns. His evidence is not
material to connect the accused with the crime.
[IV] Other witnesses :
(i) P.W.5 A.S.I. Eknath Shinde has merely attempted to
obtain services of Special Judicial Magistrate to record
dying declaration, but meanwhile Ashwini became
unconscious and died at 11.00 p.m. Hence, his evidence
is not relevant, however report received by him Exh.23
and letter to Special Judicial Magistrate Exh.24 show
that Ashwini had sustained burns due to pouring of
kerosene and setting her on fire by her husband. The
report Exh.25 from A.S.I. Bhavsar from medical hospital
shows the accused Afsarkhan, resident of Kabranagar
had sustained burn injuries due to flaring up of stove
and he was admitted in the hospital.
(ii) P.W.8 Kashinath is a spot panch. He has not supported
the prosecution.
(iii) PW9 PI Ambildhage, the Investigating Officer. He has
not carried out proper investigation and has not deposed
properly. His evidence is cryptic.
At this stage, we must also mention here that, the ld. trial
Judge has not properly recorded the statement u/s 313 Cr.P.C . He
has asked nine material questions out of which 3 are formal in nature
and not connected with the crime. It is the duty of the trial Judge to
put all incriminating circumstances before the accused person and
give him opportunity to explain the circumstances appearing against
him. In this regard, the learned advocate Shri. Patunkar has rightly
relied on Ajay Singh v State of Maharashtra AIR 2007 SC 2188.
Point Nos. 1 and 2 are so connected that those cannot be
discussed separately.
It appears from evidence of PW4 ASI Gangawane that, the
police station received information that one lady person was burnt in
Kabra Nagar area and the PSO directed him at 07:00 to 07:30 p.m.
on 24.01.2002 to go to Kabra Nagar and take her to the hospital. It
suggests that Ashwini sustained burns before 7 p.m. He had
accordingly gone to Kabra Nagar and brought Ashwini in Rickshaw to
Ghati Hospital. His evidence is cryptic of only four lines. He has not
deposed in which place the deceased Ashwini was found. He has not
stated whether Ashwini was conscious or unconscious or whether he
asked her how she sustained injuries and whether she disclosed
about the same to him. It seems that, the ld. APP in the trial Court
did not make any inquiry in this regard nor the ld. trial Judge
bothered to find out the truth. His evidence shows that, the
Investigating Officer even has not recorded his statement. He
admitted that, he had not seen the accused in the said house.
Admittedly, PW3 Dr. Varsha is wife of PSI Mundhe. It is
not known where PSI Mundhe was deputed. PW4 ASI has denied
that he was working under PSI Mundhe. His evidence shows that,
the house of Ashwini was in thickly populated area.
Evidence of PW3 Dr Varsha shows that, on 24.01.2002, she
was Casualty Medical Officer in Ghati from 02:00 to 08:00 p.m. She
stated that at 09:35 p.m. ASI PW4 Gangawane from Jawahar Nagar
Police Station brought burn patient to her. It is not explained or
clarified how PW3 Dr. Varsha was working in the hospital till 09:35
p.m. when her duty hours were only upto 08:00 p.m. Dr. Varsha
examined Ashwini and took entries in the MLC register. She had
produced the MLC registers along with xerox copies thereof Exh. 19.
She told that, she asked Ashwini how she sustained burn injuries.
Ashwini gave history that, her husband poured kerosene on her
person and set her on fire. On examination, she found that Ashwini
was having 100% burn injuries, still the patient was conscious. She
immediately gave information to the police and prepared admission
papers and sent her to burn Ward No. 22 and 23. The case papers
maintained by her do not disclose the full name of Ashwini. It is
shown that, on 29.01.2002 at 09:35 p.m. Ashwini Ayyub Khan, aged
30 years, R/o. Kabra Nagar was brought and she recorded history
narrated by the patient that, at 08:30 p.m. on 24.01.2002, her
husband poured kerosene on her person and set her on fire. The
time of 8:30 p.m. does not match with timing given by PW4 ASI
Gangawane who stated that he at 07:00 to 07:30 p.m. was asked to
help the burnt patient. She recorded that, the patient was conscious
but had superficial to deep burns to all over her body and she
referred the patient for admission in Ward No. 22 and 23 and gave
intimation to the police. Copy of the intimation letter is not
produced.
The name Ashwini Ayyubkhan does not make it clear
whether Ashwini was daughter or wife of Ayyub Khan. Pertinently,
the name of the accused is Afsar and not Ayyub but his name is
shown as Afsar @ Ayyub. The accused has denied that he was
husband of Ashwini. In cross-examination of PW9 PI-S.B.
Ambildhage, he admitted that, the investigation revealed that
Ashwini was wife of Devanand Garud, resident of Chhawani whereas;
the name of the accused was Afsar Khan. The evidence of PW1
Dr. Sachin Ingle shows that, Ashwini was brought to burn ward at
09:50 p.m. He had examined her at 10:05 p.m. and maintained her
record as per copy of case paper Exh. 30. According to him, at the
time of arrival the patient was conscious. He had asked history to the
patient and recorded the same. The patient became unconscious at
10:40 p.m. which is recorded in the case papers.
The case paper Exh. 13 shows that, the name of the patient
is Ashwini Afsar Khan and name of near relative is shown as P. V.
Gangawane. The evidence on record however shows that, PW1
Gangawane had only taken her to hospital. The case papers shows
that, he has not recorded history when the patient was admitted at
09:50 p.m. He had recommended for arrangement for MLC
statement. He had received the reference letter showing the history
as "uo&;kus vaxkoj jkWdsy Vkdwu tkGys " recoded by CMO PW3 Dr. Varsha
Kalyankar. Surprisingly, the history shows that, the patient had
sustained burn injuries at 06:30 p.m. but Dr. Varsha has recorded
that the alleged incident took place at 08:30 p.m. Her status is
shown as married. Her vital parameters are shown to be stable. She
had no cyanosis. The patient is shown as conscious till 10:40 p.m.
The evidence of PW1 Dr. Sachin does not support that the patient
had given history of pouring kerosene and setting her on fire by the
accused/husband. Pertinently, PW1 ASI Gangawane was the first
person who had opportunity to record her dying declaration. He was
with her from her house till the hospital but he has not stated
anything about dying declaration.
P.W.3 Dr. Varsha has not properly recorded the history
given by Ashwini. She has not made enquiry as to whom she was
married, where she was residing and who was her husband
The learned trial Judge has given importance to the fact
that evidence of P.W.6 Aruna that the accused and Ashwini were co-
habiting together has gone unchallenged. He did not consider the
fact that she was residing at Indiranagar, whereas the accused and
Ashwini were residing at Kabranagar. Besides, at the time of incident
the accused was not seen by her in the house. Though PW3
Dr. Varsha recorded history of setting Ashwini on fire by her
husband, Dr. Sachin Ingle PW1 recorded history by patient as burns
at 06:30 p.m.
It is also to be noted that as per the evidence of witnesses,
Ashwini had sustained 100% burns whereas as per post mortem
notes, she had sustained 96% burns. After sustaining burns by her,
somebody had given a phone call to the police and P.S.O. sent P.W.4
Rangnath to the house of Ashwini. Then he brought her to the
hospital. It must have taken quite sometime. P.W.4 Rangnath has
not stated that Ashwini made any statement to him about the cause
of her burns at her residence or during the journey. The alleged
statement was made at 9.35 p.m. and admittedly, at 11.00 p.m.
Ashwini died. She had become unconscious at 10.40 p.m.
Considering the high percentage of burns, there are serious doubts as
to whether Ashwini was physically and mentally conscious to make a
statement or not.
Considering all above facts, we have serious doubt about
physical and mental condition of Ashwini to make a statement as well
as making of statement by Ashwini to P.W.3 Varsha and we also find
that the dying declaration is not clear and cogent. The name of
husband is not recorded. P.W.3 Varsha has not stated that Ashwini
told her name as Ashwini wife of Ayyubkhan. The accused was
present in the burn ward, but Ashwini was not asked whether he was
her husband. Therefore, even if dying declaration is believed to be
true, still it is difficult to hold that Ashwini was referring to the
accused. There is difference in the name of the accused as Afsarkhan
and Ayyubkhan. Besides, Ashwini was married to Devanand Garud.
There is possibility that considering Ashwini''s illicit relations with a
Mohammedan, Devanand could have set her on fire. Considering all
the facts, we find that dying declaration and other evidence is not
cogent, reliable and trustworthy to prove the prosecution case
beyond reasonable doubt. The learned trial Judge did not properly
appreciate these facts while holding the accused guilty. Hence, the
conviction and sentence are not sustainable. Hence, we pass the
following order:
ORDER
(I) The Criminal Appeal is allowed.
(II) The judgment of conviction and sentence delivered by III
Ad hoc Additional Sessions Judge, Aurangabad in
Sessions Case No.235 of 2002 on 7.12.2002 is hereby set
aside. The accused stands acquitted of offence
punishable under Section 302 of Indian Penal Code. His
bail bonds stand cancelled. He shall furnish P.R. bond of
Rs.10,000/- with like solvent surety under Section 437-A
of Cr.P.C.
(III) We appreciate the valuable assistance given by advocate
Shri. G. B. Patunkar on our request and quantify his fees
at Rs. 7000/- which shall be paid by the State Legal
Service Authority.