NAGORAO KAMAJI SONWANE AND ORS v. THE STATE OF MAH

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It is alleged that, there was dispute between the victim namely Bynabai and accused No.1 on account of purchase of land and accused No.1 had filed the suit through his son in Basmath Court in that respect and there used to be quarrels between the accused and the deceased, and complaints were filed to that effect. It is further alleged that, on 20.4.2001, at about

5.00 p.m., the accused Nos.1 to 4 along with juvenile accused Prakash came to their field and started cutting the crop of Baru. The victim prevented the accused from cutting the said crop. Thereupon, the accused No.1 laid her to the ground by pulling her hair and the accused Nos.1 and 3 caught hold of her hands whereas accused No.4 and juvenile accused Prakash caught hold of her legs and accused No.1, by sitting on her chest, administered the poison in her mouth from a bottle and, therefore, the said victim shouted loudly and thereby her son Prakash and Rukhmabai came running there, but the accused persons fled away from the said spot. By the said act of the accused, the victim became unconscious and, therefore, her son removed her to Civil Hospital, Parbhani. It is also the case of prosecution that P.W.5 A.S.I. Radhakishan Katare was attached to Police Chowki of Civil Hospital, Parbhani on 22.4.2001 and he recorded dying declaration of said lady Bynabai, which is marked as Exhibit 66, who was admitted into the said hospital. Moreover, P.W.3 Vithal

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Gaikwad, Retired Tahsildar recorded another statement (dying declaration) of the victim Bynabai on 22.4.2001, which is marked as Exhibit 61. P.W.5 A.S.I. Radhakishan Katare forwarded the said statement to Police Station, Nanalpeth. Accordingly, Crime was registered under C.R. No.43/2001 for the offence punishable under Sections 307, 143, 147, 149 and 447 of the Indian Penal Code on 23.4.2001.

3. P.W.7 Ram Digambar Rapatwar was attached to Hatta Police Station as a P.S.I. at the relevant time i.e. in April 2001 and on 23.4.2001, Head Constable, who was attached to Police Station duty had already registered an offence and handed over the investigation thereof to P.W.7 P.S.I. Ram Rapatwar. Accordingly, P.W.7 P.S.I. Ram Rapatwar took over the further investigation in the matter.

4. During the course of investigation, he prepared a spot panchanama (Exhibit 72). Thereafter he recorded the statements of the witnesses and arrested the accused herein. Moreover, it was reported that the victim Bynabai expired in the hospital and, therefore, he prepared the inquest panchanama of the said dead body (Exhibit 69) and the said dead body was sent for post mortem. Accordingly, P.W.4 Dr. Ramesh Kanakdande performed

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the autopsy on the said dead body on 23.4.2001 and the post mortem notes are produced at Exhibit 62. Moreover, the offence punishable under Section 302 of the Indian Penal Code was incorporated in the aforesaid C.R. and P.W.7 collected the post mortem notes (Exhibit 63). Thereafter, he sent the seized muddemal articles to Chemical Analyser for the purpose of analysis along with forwarding letters Exhibits 75 and 77) and subsequently, C.A. reports were received, which are marked as Exhibits 78 to 81.

5. Accordingly, after completion of investigation, P.W.7 P.S.I. Ram Rapatwar filed a charge sheet before the learned Judicial Magistrate, First Class. However, the since some of the offences were exclusively triable by Court of Sessions, the learned Judicial Magistrate, First Class committed the said case to the Court of Sessions, Basmath. Accordingly, the learned Additional Sessions Judge, Basmathnagar framed the charge against the appellants (Exhibit 2) for the aforestated offences. To substantiate the charges levelled against the accused persons, the prosecution examined inasmuch as 8 witnesses as mentioned below :

PW 1 Nivrutti Sonwane, husband of the deceased, before whom

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the deceased allegedly made the oral dying declaration. PW 2 Prakash Nivrutti Sonwane, son of the deceased, who claims to be eye witness to the occurrence of the incident. PW 3 Vitthal Gaikwad, Retired Tahsildar, Parbhani, who recorded dying declaration (Exhibit 61).

PW 4 Dr. Ramesh Kanakdande, Medical Officer of Civil Hospital, Nasik, who performed the autopsy on the dead body of deceased Bynabai (Post Mortem report Exhibit 63)

PW 5 A.S.I. Radhakishan Katare, who recorded the another dying declaration of the deceased (Exhibit 66).

PW 6 Suresh Dipake, panch ot the spot panchanama and seizure panchanama (Exhibit 70)

PW 7 P.SI.. Ram Rapatwar, investigating officer, and PW 8 Dr. Subhash Rathod, who gave the endorsement on the aforesaid dying declarations.

6. The defence of the appellants was that of total denial but the accused did not adduce any defence evidence. Accordingly, the accused persons faced the trial and after assessing and scrutinising the evidence, the learned Additional Sessions Judge, Basmathnagar convicted and sentenced the accused persons as aforestated. Being aggrieved and dissatisfied by the said judgment and order dated 15.4.2008, the

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appellants (accused persons) preferred the present appeal challenging the correctness and legality thereof and praying for quashment thereof.

7. The prosecution case principally relied upon the two written dying declarations, Exhibit 61 recorded by P.W.3 Vitthal Gaikwad, Retired Tahsildar and Exhibit 66, recorded by P.W.5 A.S.I. Radhakishan Katare and eye witness P.W.2 Prakash Sonwane, as well as oral dying declaration, allegedly made by deceased before her husband P.W.1 Nivrutti Sonwane. Keeping in mind the said aspect, we feel it necessary to scrutinise and assess the material evidence adduced and produced by the prosecution and in the said context, coming to the deposition of P.W.3 Vitthal Gaikwad, Retired Tahsildar, who has recorded the dying declaration (Exhibit 61), stated that on 22.4.2001, he was working as Naib Tahsildar at Parbhani and as per letter received from Nanalpeth Police Station, Parbhani, he went to Civil Hospital, Parbhani and met the concerned doctor namely P.W.8 Dr. Subhash Rathod and informed that he intended to record the statement of the injured Bynabai. Accordingly, P.W.8 Dr. Subhash Rathod examined the said patient and certified that she was conscious and in fit state of mind of giving the statement. Accordingly, P.W.3 stated that he recorded the statement of the

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said lady as per her version and obtained her thumb impression thereon, which is marked as Exhibit 61. It is necessary to record at this stage only that the P.W.3 Vitthal Gaikwad, Retired Tahsildar has nowhere proved the contents of the said dying declaration (Exhibit 61) in his testimony.

8. That takes us to the another written dying declaration recorded by P.W.5 A.S.I. Radhakishan Katare, who stated that on 22.4.2001 he was attached to Police Chowki of Civil Hospital, Parbhani and he recorded dying declaration of Bynabai, who was admitted into the said hospital. He also stated that, before recording the said statement, the concerned Medical Officer examined the said patient and stated that she was conscious. He further stated that, after recording the statement, he read over the contents thereof to the said patient and obtained her thumb impression thereon as well as he scribed his signature thereon and medical officer also put the endorsement and signature thereon. He further stated that medical officer was present throughout recording of the said statement and the said statement is produced at Exhibit 66. It is also necessary to record at this juncture only that P.W.5 A.S.I. Radhakishan Katare also has not proved the contents of the said dying declaration (Exhibit 66) in his testimony. Accordingly, the testimonies of P.W.3 Vitthal

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Gaikwad and P.W.5 A.S.I. Katare who testified themselves regarding both the said dying declarations (Exhibits 61 and 66) are silent in respect of vital aspect of very occurrence of incident.

9. That takes us to the deposition of eye witness P.W.2 Prakash Nivrutti Sonwane, son of the deceased Bynabai, who stated that deceased Bynabai was his mother and he knows the accused persons, but he also stated that incident took place about six years and five months back and at the time of incident, he himself, deceased Bynabai and Rukhminibai were uprooting the stems of cotton. At that time, at about 5.00 p.m., all the accused and Prakash, son of Narayan came to their field and started cutting the crop of Baru. The deceased prevented the accused persons from cutting the crop. However, accused No.4 Narayan and his son Prakash caught-hold the legs of deceased and accused Nos.2 and 3 caught hold of her hands and accused No.1 administered the poison to deceased by sitting on her chest. He further stated that he went there and prevented the accused No.1 from administering the poison and fell on her body. Thereafter the accused persons ran away and P.W.2 Prakash and Rukhminibai took the deceased in a bullock cart and removed her to Civil Hospital, Parbhani for medical treatment. The age of the P.W.2 Prakash given in his testimony is about 21 years and as

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stated by him, incident occurred about 6 years and 5 months back, which leads to the position that P.W.2 Prakash was about 15½ years old i.e. minor at the time of occurrence of the incident.

10. Keeping in mind the said aspect and turning to the deposition of P.W.1 Nivrutti Sonwane, i.e. husband of the deceased, wherein he stated that the incident took place about 6 years and 5 months back and at the time of incident he had been to the Court at Parbhani and when he returned back to home, he came to know that deceased was referred to Civil Hospital, Parbhani. Hence, he went there and found that his wife Bynabai was under medical treatment. He, therefore, asked her what happened and thereafter she narrated that while she was in the field, accused persons came there and started cutting the crop of Baru, hence she prevented them. Thereupon, the accused laid her to the ground and accused No.2 Nagorao and accused No.3 Rambhau caught-hold of her hands whereas the accused No.4 Narayan and his son Prakash caught-hold of her legs and accused No.1 Baliram administered the poison into her mouth by sitting on her chest. He further stated that, his wife Bynabai expired on the next day while she was under the medical treatment.

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11. The learned counsel for the appellants submitted that, at the outset, the contents of both the dying declarations at Exhibits 61 and 66 have not been proved by the concerned witnesses. It is urged that, even if the said dying declarations (Exhibits 61 and 66) are accepted as they are, the contents of the said dying declarations are not consistent and there is variance in both the said dying declarations in respect of prelude to the incident, the incident itself and the overt act attributed to each of the accused in the occurrence of the alleged incident. It is further submitted that, both the written dying declarations are contradictory to each other inter-se as well as both he said dying declarations are contradictory to the testimony of eye witness P.W.2 Prakash and further the alleged oral dying declaration made by victim before P.W.1 Nivrutti is not in consonance with the aforesaid two written dying declarations at Exhibis 61 and 66 and also to the testimony of eye witness P.W.2 Prakash. Hence, the learned counsel for the appellants canvassed that the said written dying declarations (Exhibits 61 and 66) as well as the alleged oral dying declaration made by victim before P.W.1 Nivrutti falsifies the testimony of alleged eye witness i.e. P.W.2 Prakash and same cannot be construed as basis and foundation for the conviction against the appellants herein.

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12. The learned A.P.P. countered the said arguments and submitted that, the testimony of P.W.2 Prakash is the evidence of eye witness, which connects the appellants with the crime and he also submitted that the learned trial Judge has rightly relied upon both the written dying declarations (Exhibits 61 and 66) and also the testimony of eye witness P.W.2 Prakash and also relied upon the oral dying declaration made by the victim before her husband P.W.2 Nivrutti and the reasoning adopted by the learned trial Judge, convicting and sentencing the appellants for the offences for which they were charged, cannot be faulted with and no interference therein is warranted in the appellate jurisdiction.

13. After assessing the evidence on record and also after considering the submissions advanced by learned counsel for the appellants and the learned A.P.P. for the State/ respondent, it is pertinent to note that contents of both the written dying declarations i.e. Exhibit 61 and Exhibit 66 have not been proved by the respective witnesses i.e. P.W.3 Vitthal Gaikwad and A.S.I. Radhakishan Katare through their respective testimonies and, therefore, at the outset, both the said dying declarations cannot be relied upon to base the conviction against the appellants herein. However, even if the said written dying declarations (Exhibits 61 and 66) are accepted as they are, it is evident that

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the version of the victim in both the dying declarations differ from each other. It is material to note that there is reference of son Prakash i.e. P.W.2 in dying declaration (Exhibit 66), who had allegedly accompanied with the victim to the field on 20.4.2001 whereas there is no such reference of accompaniment of P.W.2 Prakash along with victim in the field in dying declaration (Exhibit

61) and it is further significant to note that the oral dying declaration allegedly made by victim before P.W.1 Nivrutti does not refer to the presence of son Prakash at the scene of offence. Moreover, there is allegation in the dying declaration (Exhibit 61) that accused persons expressed before the victim that they intended to outrage her modesty whereas there is no such reference in the dying declaration (Exhibit 66). Moreover, the specific overt act has been attributed to each of the accused during the occurrence of the incident in dying declaration (Exhibit

66) whereas no such specific overt act has been attributed to each of the accused in dying declaration (Exhibit 61). Moreover, there is allegation of accompaniment of daughter-in-law Sudhabai along with victim to the field in dying declaration (Exhibit 66) whereas there is no such reference in dying declaration (Exhibit

61). Pertinently, the dying declaration (Exhibit 61) discloses that the accused persons allegedly forced the victim to swallow the liquid from white bottle whereas it is mentioned in dying

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declaration (Exhibit 66) that accused persons forcibly made the victim to swallow poisonous substance from a bottle.

14. Thus, it is evident that there are inconsistencies in both the said written dying declarations in respect of the very prelude to the incident as well as in respect of the very occurrence of the incident itself, and more particularly, in respect of the alleged overt act attributed to each of the accused during the occurrence of the incident.

15. Significantly, the testimony of eye witness P.W.2 Prakash, who in fact was the child of 15 ½ years at the time of occurrence of the incident, also differs from both the said written dying declarations on the aforesaid aspects and his version particularly differs from the contents of written dying declaration (Exhibit 61). Moreover, the alleged oral dying declaration made by deceased Bynabai before her husband i.e. P.W.1 Nivrutti also differs from the aforesaid two written dying declarations (Exhibits 61 and 66) and more particularly differs from the contents of written dying declaration (Exhibit 61) and there is no reference in the said oral dying declaration in respect of presence of her son Prakash P.W.2 at the scene of the offence.

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16. Accordingly, considering both the written dying declarations (Exhibits 61 and 66) and the testimony of eye witness i.e. P.W.2 Prakash and the alleged oral dying declaration made by deceased Bainabai before her husband P.W.1 Nivrutti, it is amply clear that the said evidence adduced and produced by the prosecution is not consistent with each other and the said multiple dying declarations are contradictory to each other in respect of the vital aspects such as prelude to the incident, the occurrence of the incident itself, number of accused involved therein and the overt act attributed to each of the accused during the occurrence of the incident, and hence, the said multiple dying declarations as well as the testimony of eye witness i.e. P.W.2 Prakash cannot be construed as basis and foundation to inflict the conviction and sentence upon the accused persons and the reliance can be very well placed on the observations made in the case of Mohd. Rafiq Mohd. Tajoddin (2005 ALL MR (CRI) 972, wherein one of us (P.V. Hardas, J.) was the member, it is observed that,

"In the case of multiple dying declarations, dying declaration should be accepted in its entirety and it is not permissible to pick and choose pieces from the dying declarations. In the event of inter-se discrepancies in the dying declarations, it is

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extremely unsafe to accept any one as a truthful narration particularly in the absence of any other evidence which would render a particular version as a truthful version."

17. Besides, the above referred two dying declarations (Exhibits 61 and 66) and the oral dying declaration made by victim before P.W.1 Nivrutti falsifies the testimony of eye witness viz. P.W.2 Prakash and, therefore, same cannot connect the appellants with the alleged crimes. Moreover, considering the infirmities and discrepancies, both the written dying declarations and alleged oral dying declarations cannot be rendered as truthful and reliable to base the conviction against the appellants.

18. That takes us to the C.A. reports and the viscera of the said Bynabai was sent to the C.A. for examination purpose and C.A. report (Exhibit 80) discloses the results and analysis of the viscera that, "general and specific chemical testing does not reveal any poison in Exhibit No.1 and 2" i.e. viscera of Bynabai sent to C.A. for analysis purpose. Hence, considering the evidence of C.A. report (Exhibit 80), it is amply clear that the viscera of the victim does not reflect any poisonous substance and, therefore, the said C.A. report (Exhibit 80) is not in consonance with the theory advanced by the prosecution in

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respect of administration of poisonous substance to the victim Bynabai by the appellants herein forcibly. In the said context, it is necessary to refer to the observations made by Hon'ble Supreme Court in the case of Ramgopal, Appellant Vs. State of Maharashtra, Respondent reported at AIR 1972 SUPREME COURT 656, wherein it is observed that:

"In a case of death by poisoning, it is only when the motive is there and it is proved, that the deceased died of the poison in question, that the accused had that poison in his possession and that he had an opportunity to administer the poison in his possession and that he had an opportunity to administer the poison to the deceased, that the Court can infer that the accused administered the poision to the deceased resulting in his death."

19. Applying the said parameters in the instant case, it is evident that there is absolutely no cogent evidence adduced/produced by the prosecution to demonstrate that the accused/ appellants had any motive to kill Bynabai and deceased in question died due to poisonous substance and that the appellants/ accused had that poison in their possession and that they had an opportunity to administer the poison in their possession to the deceased Bynabai and, therefore, no such inference can be drawn

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that the accused i.e. appellants herein administered the poison to the deceased herein forcibly, resulting into her death and hence, the appellants herein are entitled for the benefit of doubt.

20. In the circumstances, after scrutinising and assessing the evidence on record and also considering the submissions advanced by learned counsel for the parties anxiously and also considering the impugned judgment in question, we are of the considered view that the appellants herein are entitled for the benefit of doubt and the conviction and sentence rendered by learned trial Judge against the appellants herein shall not sustain and same deserves to be quashed and set aside by allowing the present appeal.

21. In the result, Criminal Appeal No.161/2008 and Criminal Appeal No.473/2009 are allowed and the conviction and sentence rendered by judgment and order dated 15.4.2008 in Sessions Trial No.108/2001 (Old) Sessions Trial No.5/2004 (New) by learned Additional Sessions Judge, Basmathnagar stands quashed and set aside and the appellants are acquitted in respect of the charges for which they were tried and convicted. Appellant Nos.1 and 2 in Criminal Appeal No.161/2008, who are in jail, be released forthwith if not required in any other case. Bail bonds of

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appellant No.3 in Criminal Appeal No.161/2008 shall stand cancelled. Appellant in Criminal Appeal No.473/2009, who is in jail, be set at liberty forthwith if not required in any other case. Fine, if paid by the appellants, be refunded to them.

[SHRIHARI P. DAVARE, J.] [P.V. HARDAS, J.]