- (1.) While rejecting Criminal Application No.2372/2011, moved by2 Criminal Appeal No.280 of 2011 the appellants, for their release on bail during the pendancy of this criminal appeal, hearing of the criminal appeal itself was expedited by our order dated 26/07/2011. Hence, this appeal is taken up for final hearing out of turn.
(2.) The appellants, who stand convicted for an offence punishable u/s. 302, 452 r/w. 34 of the IPC and sentenced to suffer imprisonment for life and to pay fine of Rs.2,000/ with default stipulation to undergo SI for 6 months for first offence, and to suffer RI for 3 years and to pay fine of Rs.1,000/ each with default stipulation to undergo SI for 6 months for the second offence, in Sessions Case No.20/06, by Extra Joint Ad hoc Additional Sessions Judge, Nanded, by his judgment and order dated 10/05/2011, have questioned the correctness of their conviction and sentence by the present appeal.
(3.) Such of the facts as are necessary for the decision of this appeal may briefly be stated thus (a) In the night of 26/05/2005, at about 10.30 p.m. or so, wife of injured Kausar by name Rafiyabee contacted Syed Gaus Syed Gudu (P.W.No.5), her neighbourer, residing about 20 25 houses away from her house and informed that her husband had sustained burn injuries and further requested to help her to shift her injured husband to the hospital. Then injured Kausar was brought to Rural Hospital, Limbgaon, from where as per medical advice, he was3 Criminal Appeal No.280 of 2011 admitted in Civil Hospital, Nanded. On receipt of MLC about admission of injured Kausar in the Civil Hospital, A.S.I. Mirza Yunus Baig (P.W.No.13), attached to Vazirabad Police Station, went to Civil Hospital, Nanded and recorded statement (Exh.68) of injured Kausar around 12.00 mid night. One more dying declaration (Exh.54) of the injured was then recorded by Special Judicial Magistrate Md.Ahemododdin Faruki (P.W.No.9) at about 12.30 mid night. (b) On the basis of statement of Kausar at Exh.68, an offence was registered in Wazirabad Police Station at Cr.No.36/2005 against the appellants for an offence punishable u/s. 302, 452 r/w. 34 of IPC as Kausar succumbed to burns on 27/05/2005 at about 7.15 a.m. On receipt of intimation about the death of Kausar at Police o/p. in Civil Hospital, Nanded, A.S.I. Prabhakar Raghunath (P.W.No.12), attached to Wazirabad Police Station went in Civil Hospital and drew inquest panchnama (Exh.27) on the dead body. Then the dead body was referred for autopsy. (c) Dr.Balaji Chilkewar (P.W.No.8), Medical Officer attached to Civil Hospital, Nanded conducted autopsy on the dead body. During the post mortem, he noted superficial to deep burns injuries all over the body except face of injured Kausar. On face, burn injuries were present over lateral aspect of forehead, lateral aspect of orbital area of both and both cheeks and nose. All the injuries are anti mortem. He has opined that cause of death of deceased is4 Criminal Appeal No.280 of 2011 shock due to 95% burn injuries. Accordingly, he had prepared post mortem report at Exh.46/Exh.48. He has further opined that he is not sure whether the burns are due to kerosene or any other substance. He can not say the exact cause of the burns. (d) Investigation in CR No.36/2005 was carried out by A.P.I. Arun Rautwar (P.W.No.14). During the investigation, he visited the place of incident and drew spot panchnama (Exh.25). From the spot, he had seized burnt pieces of cotton. In the night of 27/05/2005, appellant no.1 Waman Gulab Kadam was arrested under arrest panchnama (Exh.74). Appellant no.2 and appellant no. 3 were arrested on 28/05/2005 under arrest panchnama at Exh.75 and Exh.76. During further investigation, he recorded statements of certain witnesses during the period of 28/05/2005 to 30/05/2005. While in custody, on 31/07/2005, appellant no.2 made voluntary disclosure statement which was recorded in memorandum (Exh.29) leading to the discovery of one empty bottle, said to contain with kerosene which was recovered from the place below the railway bridge and was seized under seizure panchnama Exh.30. On the same day, appellant no.3 also made disclosure statement recorded in the memorandum (Exh.31) leading to the discovery of one match box below the railway bridge seized under seizure panchnama at Exh.32 in presence of witnesses. During the further investigation, the articles were referred to Chemical Analyser alongwith covering letter Exh.37 on 15/06/2005. Further to the completion of investigation,5 Criminal Appeal No.280 of 2011 charge sheet was filed in the court of J.M.F.C. Nanded. (e) On committal of trial to the Court of Sessions, learned Trial Court framed the charge at Exh.12 for an offence punishable u/s. 302, 452 r/w 34 of the IPC. Appellants pleaded not guilty to the charge and claimed to be tried. During the trial, prosecution has examined in all 15 witnesses to prove the guilt of the appellants. Defence of the appellants is of total denial and of their false implication in the prosecution case. On appreciation of prosecution evidence, Trial Court convicted and sentenced the appellants as stated above. From the record, it reveals that out of the 15 witnesses examined by the prosecution P.W.No.1 Sahebrao panch witness to the spot panchnama, P.W.No.3 and P.W.No.4 Ankush Patange and Shaikh Mustafa both are the witnesses to the alleged disclosure statement made by appellants no.2 and 3 leading to the discovery of empty bottle and match box at the instance of these 2 appellants, P.W.No.7 Syed Ejaz Syed Ahmed, elder brother of the deceased have not supported the case of the prosecution. (f) During the course of submissions across the bar, learned counsel for appellants have not seriously disputed that the death of the deceased was caused due to burn injuries and an un natural death. (g) As the conviction of the appellants is mainly based upon6 Criminal Appeal No.280 of 2011 the 2 dying declarations recorded by P.W.No.13 Mirza Yunus Baig at Exh.68 and by P.W.No.9 Md.Ahemoddin Faruki at Exh.54, learned counsel for appellants mainly attacked on the credibility of these 2 dying declarations and about the truthfulness and reliability of the evidence given by these 2 witnesses.;