Fazal Ali, J. - (1.) These two appeals are directed against the judgment of the Maharashtra High Court, convicting the appellants under Ss. 302/34 of the I. P. C. after reversing the order passed by the Sessions Judge acquitting the two appellants. The appellants have filed these appeals under S. 379 of the Cr. P. C. and the provisions of the Supreme Court Enlargement of Appellate Jurisdiction Act.
(2.) It is rather an unfortunate case of patricide resulting from a dispute relating to property. A detailed narrative of the prosecution is to be found in the High Court Judgment and it is not necessary for us to repeat the same here. Suffice it to say that there appears to be no love lost between deceased Babu Bapu Vaid and his son, accused No. 1 Ananta, hereafter to be referred as A-1. The other accused Vithal Somnath More was a friend of A-1 and will be referred to as A-2. It appears that A-1 was living separately from his father and uncles and he filed a suit for partition of the property against his father. A partition decree was passed and when the occurrence took place an appeal against the decree was pending in the appellate court. On 3rd Feb., 1971 while the deceased was coming towards his village Pethardi and was about three furlongs from his house he was surrounded by the two accused A-1 and A-2. A-2 poured kerosene oil on deceased"s clothes and A-1 is said to have lighted deceased"s clothes through a lighted Mashal made of an iron bar. On receiving the burn injuries the deceased shouted, which brought P. Ws. 2 and 6 to the spot. These witnesses ran to the spot on hearing the cries of the deceased and deceased was also running towards his house. Fortunately, the witnesses arrived at the scene in time and at once extinguished the fire, but the accused ran away on seeing them. Some time later Pandurang P. W. 5. a brother of the deceased arrived at the scene of the occurrence and arranged for a cot and took his brother to the dispensary at Kem, where Dr. Doshi gave him first aid. The deceased is said to have made an oral dying declaration to P. Ws. 2 and 6 wherein he implicated the two accused and repeated the same dying declaration before his brother, P. W. 5 also. Dr. Doshi asked the constable to write down a dying declaration made by the deceased of which the questions were put by the Doctor and answered by the deceased. The First written dying declaration, therefore, appears to have been made by the deceased to Dr. Doshi at about 11.00 p. m. Thereafter, Pandurang lodged F. I. R. at the Police station which brought the Investigating Officer to the spot and after the usual investigation the accused were challaned but ultimately acquitted by the Sessions Judge as indicated above. The accused pleaded innocence and the defence of A-1 was that his father was a man of loose character and had outraged the modesty of a woman a few years ago and had even cast an evil eye on his daughter-in-law, (wife of A-1) and suggested that he may have been assaulted by some of his enemies. The Sessions Judge found that the evidence against the accused was not satisfactory and the case was not proved and he accordingly acquitted the accused. The state filed an appeal to the High court against the order of acquittal, in which the High Court reversed the judgment of the Sessions Judge and convicted the appellants under S. 302/34 and sentenced them to imprisonment for life. Hence this appeal before us.
(3.) We have heard learned counsel for the parties and have also gone through the judgments of the High Court and that of the Sessions Judge. It is no doubt true that the High Court hearing an appeal against an order of acquittal can interfere for substantial reasons and not merely because another view on the evidence is reasonably possible, but it seems to us that the High Court was fully alive to the principles laid down by this Court for interference with an order of acquittal. The High Court has given convincing reasons for setting aside the judgment of the learned Sessions Judge, The main evidence against the accused consisted of the following facts: (1) The evidence of the two eye-witnesses P. Ws. 2 and 6, (2) Evidence furnished by the oral dying declaration alleged to have been made by the deceased before P. Ws. 2 and 6 the moment they arrived at the scene as also to P. W. 5 Pandurang. (3) The dying declaration made by the deceased to Dr. Doshi at the dispensary, (4) Another dying declaration which was recorded by the Head Constable at the Hospital and the last dying declaration which was recorded by Honorary Magistrate, P. W. 13 at the General Hospital at about 2.10 p. m.;