Dilip Arjun Dhavale vs The State of Maharashtra

Vishnu Sahai, J.—The appellant aggrieved by the judgment and order dated 17.2.1995 passed by the Additional Sessions Judge, Solapur, in Sessions Case No. 136 of 1994, convicting and sentencing him to undergo rigorous imprisonment for life for the offence punishable u/s 302 of the I.P.C. has come up in appeal before us.

In short the prosecution case runs as under :

On 29.4.1994 at about 10.30 a.m. while the deceased Vithal Kamble was having tea along with Damu Chambhar, opposite Deepak Pan Merchant in Marias Chowk in Solapur the appellant came with a vessel containing petrol and threw petrol from the same on the person of Vithal Kamble. Thereafter the appellant set Vithal Kamble on fire with a match stick. Vithal Kamble raised cries hearing which P.H.C. Gade P.W. 3, constable Jadhav P.W. 7, Babu Koli P.W. 8, Udhav Mhaske P.W. 11 and some others came. Udhav Mhaske threw a gunny bag on the person of Vithal Kamble and some others poured water on him. Babu Koli enquired from Vithal Kamble as to how he had received burn injuries and he replied that the appellant had poured petrol on him and set him on fire.

The evidence of Babu Koli shows that he took Vithal Kamble in a rickshaw and brought him to Civil Hospital, Solapur.

The evidence of Dr. Asha Gaikwad P.W. 4 of Civil Hospital, Solapur shows that Vithal Kamble was brought by Babu Koli and when she enquired from him the history of his burns he replied that they were caused by the appellant who poured petrol on his person and set him on fire.

Vithal Kamble succumbed to his injuries at 4.30 p.m. the same day. But prior to his death his dying declaration was recorded by Special Executive Magistrate. Sharanbasappa Tarapure P.W. 6 and P.W. 3 P.H.C. Gade (Exhibit 26).

The F.I.R. of the incident was registered on the basis of Vithal Kamble''s statement recorded by P.H.C. Gade.

After usual Investigation the appellant was charge-sheeted for an offence punishable u/s 302 of the I.P.C.

Going backwards the autopsy on the corpse of the deceased Vithal Ramble was conducted by Dr. Bhismcharya Bhagwan Godale, P.W. 2, who found on it 87% burns, which were distributed all over the body and were sufficient in the ordinary course of nature to cause death.

The case was committed to the Court of Sessions in the usual manner where the appellant was charged for an offence u/s 302 of the I.P.C. to which he pleaded not guilty and claimed to be tried.

During trial in all the prosecution examined 17 witnesses. In defence the appellant examined no witness. The learned trial Judge rejected the entire evidence adduced by the prosecution, excepting that of Babu Koli P.W. 8 to whom the deceased had made an oral dying declaration. The learned Judge convicted the appellant on Babu Koli''s evidence.

Hence this appeal.

It is the common ground between counsel for the parties that although prosecution adduced overwhelming evidence in the form of ocular account and dying declaration but the same has been rejected by the learned trial Judge and the conviction of the appellant is founded on the testimony of Babu Koli, to whom the deceased made an oral dying declaration prior to his death and who got him admitted in Civil Hospital, Solapur.

The question is whether the statement of Babu Koli P.W. 8 inspires confidence.

In his deposition in the Trial Court Babu Koli stated that the deceased Vithal Kamble was his maternal uncle. On 29.4.1994 at about 10.05 a.m. while he was standing near Laxmi Pan shop near Laxmi Mills, he saw people on the road running towards Marias Chowk. He also reached there immediately. He saw police personnel extinguishing the fire. By voice he recognized that the victim was Vithal Kamble. He made enquiries from him regarding the manner in which he had received burns whereupon he told him that the appellant had poured petrol on his person and had set him on fire by a match stick. Thereafter he took Vithal Kamble on a rickshaw to the Civil Hospital and had him admitted there.

After having evaluated the evidence of Vithal Kamble we are constrained to observe that it would not be safe for us to place reliance on the oral dying declaration contained in it.

Babu Koli admitted that he had stated before the police that Vithal Kamble had told him that the appellant had poured petrol on his person and set him on fire and could assign no reason why it was not there in his police statement. The said omission has been proved by the evidence of the Investigating Officer P.I. Vishwas Chaugule, P.W. 17 who recorded Babu Koli''s statement u/s 161 of the Cr. P.C., on 30.4.1994.

Since there is an omission in respect of the oral dying declaration in Babu Koli''s evidence and bearing in mind that Babu Koli is a highly interested witness and the observations contained in para 12 of the oft-quoted case of Bhagwandas Vs. The State of Rajasthan, in terms that ordinarily oral dying declaration should not be relied upon, in our view, it would not be safe to sustain the conviction of the appellant on this solitary piece of evidence. Para 12 of the said decision reads thus :

(12). The other piece of evidence which the prosecution relied upon was the two dying declarations made by Shivlal to Gyaniram P.W. 4 and Jora P.W. 7. Besides the infirmities which the testimony of these two witnesses (Gyaniram P.W. 4 and Jora P, W. 7) suffered from due to material contradictions In their respective statements made at various stages of the case and which have been pointed out by the learned Sessions Judge who said about Gyaniram :

In such a state of affairs I refuse to put any weight and value to the statement of Gyaniram....

their evidence cannot be a sure foundation for maintaining the conviction if the statement of Hazari the sole eye witness is disregarded, as it must be disregarded in this case : because ordinarily a dying declaration of the kind which the prosecution has relied upon is by itself insufficient for sustaining a conviction on a charge of murder.

(emphasis supplied)

In the result this appeal is allowed. We set aside the conviction and sentence of the appellant for the offence u/s 302 of the I.P.C. and acquit him on that count. The Appellant is in jail and shall be released forthwith unless wanted in some other case.