GAJANAN SHIVRAM KARVE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE accused appellant has challenged the conviction and sentence imposed upon him under section 302 of the Indian Penal Code by the Sessions Court, Bombay in S. C. Case no. 707 of 2001. The case of the prosecution is that the accused and the victim were friendly with each other. About 4 or 5 months prior to the incident, the prosecution claims that the accused had thrown some eggs on the victim. On 4. 2. 2001, at about 7 p. m. , the victim found the accused standing by the Saibaba Mandir. The victim purchased an egg from a shop closeby and threw it on the face of the accused. The accused left the place while the victim remained standing near the Saibaba temple. Soon thereafter, the accused came to the spot where the victim was standing holding a kerosene bottle. The accused splattered the contents of the bottle on to the victim and then set him on fire. Hearing his shouts, his brother, Chandrakant came to the spot and extinguished the fire by dousing the victim with water. The accused was arrested and tried by the Sessions Court for having committed murder of the victim.

(2.) WITH the assistance of Ms. Kuttikrishna, learned Advocate for the appellant and the learned Assistant Public prosecutor, we have scrutinised the entire evidence on record. We have reappreciated the same and we find that we are unable to affirm the impugned judgment. The evidence led by the prosecution suffers from too many discrepancies and contradictions as will be seen hereafter. According to the prosecution, the victim's statement recorded by the Police Officer has been treated as the First Information Report at Exhibit 28. The First Information Report discloses that it was lodged on 4. 2. 2001 at about 8. 45 p. m. Significantly, no signature of the victim has been obtained on this statement. Nor is there any endorsement from the Doctor treating him at the K. E. M. hospital where he was admitted. However, it has been signed by the Police Officer who recorded the statement. The victim has stated in his statement that on 4. 2. 2001, at about 7 p. m. he went near the Sai Mandir where the accused was already sitting. He bought an egg from the shop closeby and broke it on the head of the accused. This was because the accused had four or five months prior to that date similarly thrown eggs on the victim. The victim in fact told the accused the reason for his actions. The accused left the place while the victim continued at the spot. About half an hour later, the accused came to the spot against carrying a bottle of kerosene. The victim claims in his statement that the accused smeared his face with kerosene from the bottle due to which he felt a burning sensation and tried wiping off the kerosene from his eyes. The victim then states that the accused emptied the bottle of kerosene on his head and set him ablaze. His brother Chandrakant came to the spot when the victim shouted and extinguished the flames. He states that he was then admitted to hospital where he was under treatment. The victim then claims that he had suffered burns on his chest, stomach, head, hands and the right toe.

(3.) THE prosecution claims that thereafter at about 10 p. m. another statement of the victim was recorded. This statement was recorded by the Special Executive Magistrate according to the prosecution. The contents of the statement are no different from the statement recorded at Exhibit 28. The statement bears an endorsement of a Doctor which is marked as Exhibit 35. The Special Executive Magistrate who has been examined as PW16 has stated categorically that he received a phone call from Dadar police Station at about 10 p. m. informing him that he was required at the KEM hospital to record a dying declaration. Accordingly, he went to the hospital and directed one of his subordinates to write the statement. The victim mentioned his name but he was not in a position to speak coherently according to PW 16. In fact, this witness has stated that the injured had not stated anything in his presence, besides mentioning his name. This witness has been declared hostile. The endorsement on the statement at Exhibit 35 of the Medical Officer was made by PW 14. This Doctor has stated that he was not treating the victim but had made the endorsement without consulting the Doctor, who was then treating the victim. He has stated that he has endorsed the dying declaration only because the police directed him to do so. With such evidence on record, in our opinion, it is impossible to accept the statements of the victim. The dying declaration which bears the Doctor's endorsement at Exhibit 35 indicates that it was signed by the victim. However, the victim has stated that his hands were burnt. Besides that the statement at Exhibit 28 which is considered as the FIR is not signed although it was recorded earlier in point of time. The Special executive Magistrate has stated categorically that he did not record the statement as the victim was incoherent. In such circumstances, the dying declaration allegedly recorded by the Special Executive Magistrate cannot be said to have been proved. It would therefore, be necessary to consider whether the members of the victim's family, two of whom were eye-witnesses, have been able to prove that the accused had set the victim ablaze.