V. Mohta, J.
1. Ramzan Ali Gulam Hussain and one Barkya alias Ashok Parshram Patil were tried for an offence under section 302 read with section 34 of the Indian Penal Code, by the learned Additional Sessions Judge, Pune, on the charges that they had committed murder of Smt. Mangala alias Zarina wife of Ramzan Ali by stabbing and setting fire to her person after pouring petrol on her on 26-11-1980 on Alandi, Pune Road. Barkya was acquitted but Ramzan Ali (the appellant) was convicted under section 302 and was sentenced to imprisonment for life. The present appeal is directed against the said order of conviction and sentence.
2. The prosecution story can be stated thus :
One Raghunath Bhalerao belonging to Christian community resides in Somwarpeth Pune. His family consisted of his wife, their four daughters including Mangala alias Zarina the deceased, Shalini (P.W. 7) and a son Ashok. Out of the four daughters, Meena and Rohini were married and were living with their husbands. Mangala alias Zarina had a love affair with appellant accused No. 1 . They married at Alandi on 2-4-1977. Nearly three months before the marriage Mangala had delivered a male child. The marriage was celebrated according to the Muslim religion and after the marriage Mangala was re-named as Zarina. Husband and wife started living in a different house but in the same locality. The peace did not last long and quarrels started between husband and wife. Ramzan Ali started having a love affair with his cousin Salma. They had taken out a joint photograph. This fact was disclosed by Zarina to her sister Shalini and the photograph was also shown. There were disputes between Zarina and Ramzan Ali over the custody of the child. The matter was contested in Court of law. Zarina had left the house of her husband and started living with the incident, she was continuously residing there. In the evening at about 5 o'clock, on 26-11-80 Salim the brother of Ramzan Ali came to the house of Shalini to see his sister-in -law Zarina . Salim handed over cinema ticket of Alankar theatre and also some cash to Zarina telling that the same were given by Ramzan Ali. Salim told Zarina that her husband had called her to see 6-30 cinema-show of the movie 'Dostana'. Zarina prepared herself for going to the movies and thereupon Shalini had questioned her as to where She was going. Zarina told the sister that her husband had sent her cinema ticket of Alankar talkies and in response to the call of the husband she was going to a movie. Shalini told Zarina as to why she was going to cinema with her husband when there were standing quarrels between them. Zarina told her in reply that it was her duty to respond to the call of her husband. So saying Zarina left the house at about 5-40 p.m. On the same evening one Hanmant Baburao Kalje was grazing his cattle on Pune Alandi road at a place known as Dighi magzine. After the sun-set he had kept his cattle in the cattle-shed and had gone to the hotel of his brother Balu for drinking water. There was petromax light in the hotel. A about 8.30 p.m. Hanmant Kalje (P.W. 5) happened to notice one scooter coming to the hotel. One lady and one short stature boy were on the pillion seat of the scooter which was being driven by one tall man. The scooter stopped on the road and all the three persons came to the hotel, took tea and Bhel and thereafter went away on the scooter towards Alandi side.
3. On the same night one Matador-cum-tempo belonging to one Mohammad Turkus, Pune was returning from Alandi to Pune. Mohammed Hanif (P.W. 6 ) was the cleaner on that vehicle. Mohammad Hanif happened to see a burnt lady. The vehicle was stopped. Persons from the crowd gathered and requested the driver and the cleaner to carry the burnt lady to the Sassoon Hospital Pune. Accordingly she was taken to the said Hospital. On the way Mohammad Hanif happened to question the burnt lady about the cause of the burning. Thereupon she told him that her husband beat her, husband's friend poured petrol on her body and that her husband set fire to her clothes by a match stick. At the Sassoon Hospital, Mohammed Hanif was told by the burnt lady to report this matter to her mother by going to her house in Somwarpeth. Accordingly Mohammad Hanif went to their house and reported the matter to P.W. 7 Shalini and other family members. This message was conveyed at about 10-30 p.m. Shalini along with her brother and mother rushed to the hospital and reached the burns ward at about 11 to 11-30 p.m. When Shalini noticed Zarina fully in a burnt condition, she had questioned Zarina as to what had happened. Zarina gave a long story stating all the facts. Zarina told her that during the interval of the cinema show, her husband took her out of the theatre and brought her to Vishrantwadi side . One rikshaw was see approaching the scooter. Barkya (original accused No. 2) Who is the friend of Ramzan Ali (original accused No. 1) was in the rikshaw. Barkya left the rikshaw and all the three started riding the scooter. On Alandi Road, they had gone to one hotel from where she was taken ahead towards Alandi. On the way near Dnyaneshwar Paduka stop, the scooter was stopped. The husband started assaulting her and gave knife blows. Barkya poured petrol on her person and her husband set fire with match stick. By seeing flames she started shouting and, therefore, her husband and Barkya fled away.
4. On the same night even before Shalini reached hospital, the Incharge Dr. Panse (P.W. 1) had examined Zarina and the history of the incident was given by her even to Dr. Panse who had recorded the same in writing. Dr. Panse noticed that there were 66% burn injuries on the person of Zarina, both upper extremities parts (right hand spared) lower part of abdomen and perineum back and buttocks and both lower extremities except feet had been burnt. He also noticed one contused lacerated wound 11/2' long oblique above left inguinal region. There were blood clots on the left hand. That part of contused lacerated wound was also burnt. Zarina was in a conscious state of mind and was talking. She was treated as an indoor patient. On the same night in the mid-night police Constable Narayan Khashaba Kamble (P.W. 12) attached to Vishrantwadi Police Station, received a phone message that a lady by name Zarina was burnt by her husband Ramzan Ali on Pune Alandi Road at about 10 p.m. and that he had run away and the injured had been admitted to the Sassoon Hospital. Entry was taken in the Phone Register. When P.S.I. Chorge (P.W. 11) came to know about this phone message, he rushed to the Sassoon Hospital at about 1-30 mid night and contacted Zarina in the burns ward. The Doctor in-charge gave consent to Chorge (P.W. 11) to record the complaint of Zarina and accordingly the First information Report (Ex. 44) was recorded. The offence was, thereafter, registered as Crime No. 79 of 1980 under section 307 read with section 34 of the Indian Penal Code. At about 3 a.m. having recorded the First Information Report, P.S.I. Chorge arranged to call the Sub-Divisional Magistrate for recording the dying declaration of Zarina, who made dying declaration before the Sub-Divisional Magistrate Shri Kulkarni. (P.W. 9)
5. P.S.I. Chaudhary (P.W. 13) was also working at Vishrantwadi Police Station. When he came to know about the place of the incident, he went to the spot at about 5 o' clock in the morning but was unable to do anything because of darkness. He waited on the spot for the sun rise. In the morning he called two persons including Laxman Baburao Rajguru (P.W. 2) and drew panchanama of the scene of the occurrence between 7 a.m. to 12 a.m. While drawing the panchanama (Ex. 12) he got attached articles like knife (article 3), empty bottle of Rum (article 4), burnt pieces of Sari (article 5), burnt petticoat (article 6) and burnt earth (article 7). Police Inspector Kadam, took charge of investigation in the afternoon of the next day from P.S.I. Chorge and Chaudhary. He verified the First Information Report and the panchanama and went to the Sassoon Hospital at about 5-30 p.m. and recorded supplementary statement of Zarina. On the same day, he recorded the statement of Hanmant Kalje (P.W. 5), Shalini (P.W. 7) and others. The scooter of accused No. 1 was attached under panchanama Ex. 1. on the next day i.e. 27-11-1980, Inspector Kadam (P.W. 14) recorded the statements of Mohammed Hanif (P.W. 6) and others. He tried to find out the accused till 28-11-1980 but he was not to be found. On 29th accused No. 1 surrendered himself and appeared before the Judicial Magistrate, First class, Pune. On the next day, accused No. 2 was arrested. On 1-12-1980, Zarina died in the burns ward at about 3 o'clock in the early morning. The Medical Officer Dr. Watve (P.W. 15) had an occasion to examine Zarina at the time of the death and according to him, she had died due to 66% burn injuries which sufficient in the ordinary course of nature to cause death. Ex. 55, death certificate along with the probable cause of death was issued.
6. On 1-12-1980 P.S.I. Chaudhary prepared inquest (Ex. 15) of the dead body of Zarina mentioning the condition of the body which was not sent for post-mortem in view of the certificate issued by Dr. Watve. In view of the death of Zarina, the offence was changed from 307 to 302 read with section 34 of the Indian Penal Code, Exs. 17,18 and 19 are the panchanamas under which clothes of the deceased were attached by Inspector Kadam. The said articles were sent to the Chemical Analyser Pune for research. On 10-12-1980, Inspector Kadam sent a requisition to the Sub-Divisional Magistrate for holding identification parade. Accordingly, the Sub-Divisional Magistrate. Shri Shaikh (P.W. 10) held the identification parade of both the accused on 15-12-1980. In this identification parade, Hanmant Kalje (P.W.5) had identified both the accused saying that those were the persons who had come to the hotel along with a lady in the evening of 26-11-1980. When Hanmant's statement was recorded on 27-11-1980, Zarina was shown to him in the burns ward and he had identified her also as the lady who was riding the scooter along with the two persons.
7. After the inquiry, charge-sheet was filed. Accused were committed to sessions and trial. Both the accused pleaded not guilty and denied the charges. According to accused No. 1 he did not know anything about the incident and indeed had gone to Bombay on 25-11-1980 from where he returned on 28-11-1980. When he came to know about the burn injuries to his wife Zarina and further that police was in his search in connection with the incident, he appeared voluntarily before the Judicial Magistrate, First Class, Pune. He also gave his statement in writing (Ex. 56) that he has been falsely involved by his wife with a view to take vengeance against him in view of the strained relationship between them and the continuous disputes. According to him, Zarina was not leading a moral life and despite this fact he had married her because of the love which he had for her. They got a son on 22-1-1977 and thereafter they got married according to the Muslim religion on 2-4-1977. He tried to persuade Zarina to improve her conduct but all attempts were unsuccessful. She used to leave the house at any time. On many occasions the accused brought her back. In April 1979, Zarina left his house by keeping her son with him and filed an application under section 97 of the Code of Criminal Procedure before the Court of Judicial Magistrate, First Class, pune for getting search warrant. She obtained the custody of their son Samir. Being aggrieved by that order, accused No. 1 had filed criminal revision in the Court of the Extra Joint Judge, pune and during the pendency of that revision, his parents persuaded Zarina to behave properly. The matter was than compromised and both of them started residing together, once again along with son Samir. Thereafter also, Zarina did not change her behaviour. On 30-6-1980 she ran away with Samir . As a result, the accused had given an application to the police. Thereafter Zarina left Samir at his house. The accused had filed Miscellaneous Application No. 368 of 1980 in the Court of the Extra Joint Judge, Pune, for appointing himself as the guardian of the minor child. Zarina was duly served of this application but the chose to remain ex-parte and the application was granted on 26-11-1980 i.e. the date of the incident itself. The husband had also filed Marriage Petition No. 157 of 1980 against Zarina for restitution of conjugal rights. On 16-8-1980 in this proceeding also, Zarina remained ex parte. As a result on 16-9-1980 an ex parte order was passed against her. In spite of these litigations, Zarina never came to the house of the accused to led a married life. Zarina was a hot-headed and a fickle-minded lady. She had mischievous tendencies and was always having a destructive policy. She had no love for the husband and she was having illicit relationship with a third person and that Zarina had gone to Alandi in desperate mood with her lover and some quarrel had taken place between them, resulting in the incident. The third person must have left her with the result that Zarina must become desperate and set fire to nylon sari, and with a view to take revenge and with a view to save her reputation, she invented a false story and attempted to implicate the accused. In the year 1973, i.e. nearly four years before the marriage, Zarina had delivered illegitimate child and on 12-12-1978 had consumed kerosene with a view to commit suicide and was admitted in a hospital in that condition. The police concocted a false story.
8. The accused entered into the witness box and also examined certain defence witnesses to prove certain documents, the history of the litigation and also alibi. The defence of accused No. 2 Barkya was that he had no concern with accused No. 1 and indeed was not even knowing either him or Zarina. He was not the resident of Somwar Peth as alleged by the prosecution but was living in Mangalwar Peth. Certain documents including the ration card showing his place of residence at Mangalwar Peth was also produced.
9. The learned Sessions Judge came to the conclusion that Zarina died a homicidal death. Identification parade was not accepted as true and guanine and on the basis he acquitted accused No. 2 disbelieving the evidence of Hanmant Kalje (P. W. 5). However, accused No. 1 was held guilty mainly on the basis of five dying declarations. The State has not challenged the acquittal of Barkya.
10. Shri Chitnis the learned Counsel for the appellant in the first place contended that the story of Zarina having left the house for seeing a movie at the instance of the husband against the back drop of a series of litigations and strained relationship appears to be wholly unnatural. We see considerable force in this submission. (P.W. 7) Shalini is the only witness examined by the prosecution is support of this part of the story. We are not impressed by the testimony of this witness. In the cross-examination she has feigned ignorance about many obvious matters, e.g. according to her she never knew about the Court case and also attempted suicide by her sister. When the question that even in the year 1973, Zarina has delivered an illegitimate child was put to her, she avoided the answer and gave inconsistent version. That Zarina attempted suicide on 12-12-1978 is obvious, from the evidence of P.W. 9, Dr. Mrs. Uma Pradip Divate, who was summoned with the record of the Sassoon Hospital, dated 12-12-1978 from which it is apparent that a lady by name Zarina Aditya, was admitted with diagnosis of Kerosene oil poison. Dr. Divate had seen and treated the patient. Zarina was found to be psychiatrically distributed and she was accordingly treated by giving sedative treatment. In the cross-examination, no suggestion is put up that the record did not relate to the deceased Zarina. It is difficult to imagine that (P.W. 7. Shalini would not know all this. Similarly, the accused has produced the copies of the Miscellaneous Application No. 368 of 1980 (Ex. 57), a copy of the judgment dated 26-11-1980 (Ex. 57), a copy of the petition for restitution of conjugal rights, dated 16-8-1980 (Ex. 57-B) along with ex parte order and the copy of the Revisional Memo along with the order dated 25-5-1979 ( Ex. 57-C) and so also purshis (Ex, 57-D) dated 16-10-1969 regarding settlement between the parties. The deceased was staying with P.W. 7 Shalini and it looks wholly unnatural that Shalini would not know that the petition for restitution of conjugal rights has been filed in a Court by her sister's husband. She has admitted in the case cross-examination that never before Zarina had gone to cinema in this fashion. In view of the series of litigation and fact that on the very day, the accused was successful in getting a decree for restitution of conjugal rights. It seems wholly incredible that only on the message from the husband the deceased would take the risk or will have mental inclination to see a movie along with the husband. Ex facie there was something unnatural in the offer to go to cinema if at all the offer was true and a person like Zarina would not take things to granted. What looks still more incredible is agreeing to leave the cinema theatre after the interval and going to Alandi all alone with the husband on the scooter. It is further in evidence of the prosecution that the accused and his friend voluntarily stopped at a hotel on the way to Alandi, because if the prosecution story is correct that the accused called the deceased to cinema theatre, with a pre-plan of murdering her, he would not think of stopping at a hotel of his own accord especially when the deceased had not insisted for the stop for the purpose of taking tea or eatables. The solitary witness to prove presence of the accused in a road side hotel on Pune Alandi Road, is (P.W. 5) Hanmant Kalje. The learned Sessions Judge has disbelieved him on the presence of accused No. 2. His evidence about the identification parade has also been discard. Hence it is difficult to appreciate as to how safe reliance could be placed on the testimony of this witness with regard to the story of the presence of accused No. 1 along with accused No. 2 and Zarina at the hotel on the fateful day of the incident.
11. Thus we are left only with the evidence of dying declarations, the truthfulness of which has to be judged in the back ground of this prima facie unnatural story. There cannot be any manner of doubt that conviction can be based upon uncorroborated truthful dying declaration. In all there are five dying declarations on the record. The first one being to Mohammed Hanif (P.W. 6). This witness admits that in a statement before the police he had not stated that Zarina made a statement before him that husband's friend had poured petrol. In cross-examination this witness could not even make a statement about the language in which Zarina spoke to him. In this dying declaration the story of attack by knife and so also of stoppage in a hotel is completely missing. Second dying declaration is to Dr. Panse (P.W. 8) in which also there is neither any reference to the attack by knife or to the stoppage at the hotel. The learned Sessions Judge while referring to the aspect of absence of the attack by knife has refused to give any importance to the same on the ground that after all the prosecution had not come up with a case a murder by knife. We are unable to appreciate this line of reasoning. What is material is not the cause of the death but the discrepency in not mentioning the story of the husband having attacked the wife three times by the knife. As far as spoke of sprinkling the petrol is concerned, it is pertinent to notice that in the report of the Chemical Analyser (Ex. 51), it is clearly mentioned that residues of petroleum hydrocarbons in Exhibits Nos. 1 to 4 were not found. It is also pertinent to note that neither the knife nor the bottle of rum said to have contained either kerosene or petrol, were sent for chemical examination. This aspect of absence of residues of petroleum hydrocarbons has not been given any importance by the learned Sessions Judge on the ground that after all the examination had taken place after a long time by which petrol must have evaporated. In our judgement, there has been basic error in appreciating this aspect of the case. Residues of petroleum hydrocarbons are to be found as a result of the burning of the material with petroleum and has nothing to do with subsequent evaporation of petrol Shri Kamble, the learned P.P. appearing on behalf of the State has not been able to furnish us any explanation as to why either the bottle or the knife were not sent for chemical examination, under the circumstancee. It is in this back ground, that the third dying declaration made to (P.W. 7) Shalini has to be weighed. It is for the first time that the deceased is said to have made a statement about the knife as well as about the stoppage at the hotel. This dying declaration is reported to have been made between 11 to 11-30 p.m. in the hospital. We have already referred to the evidence of (P.W. 7) Shalini, the truthfulness of whose version about the whole incident and the narration of back ground we have not accepted. The fourth dying declaration is to the P.S.I. Chorge. It is in writing (Ex. 44) in which the following version is to be found.
'After seeing the picture up to interval, Ramzan Ali told me that he had a quarrel with his father and he suggested that we two should go to Alandi and we would go to stay at the house of friend of Ramzan Ali. Thereupon I told Ramzan Ali that I was afraid of him and apprehended that he might kill me. Thereupon Ramzan Ali told that he would not do anything to me. While we were standing outside during the interval of the cinema, the friend of Ramzan Ali appeared from no where and he told Ramzan Ali that his father was annoyed with him on hearing he met me. Though having refused to accompany Ramzan Ali he having forced me and having made me to sit on the scooter, we left Alankar. At the same time Barkya also in his rickshaw followed us. When we reached Vishrantwadi, Ramzan Ali, stopped his scooter and Barkya who was following us in the rickshaw got down from the rickshaw. At that time, the time was around 8-30 to 8-45 p.m. Thereafter Barkya sat on the scooter between me and Ramzan Ali.
Thereafter we three came and on the road leading to Alandi. At Alandi Road, after one Temple there is a small hill. After climbing down half of the hill Ramzan Ali stopped the scooter and all of sudden started beating me with his hands. At that time Ramzan Ali gave me a blow with his knife in my stomach. It was 9-00 to 9-15 p.m. On my shouting he pushed me from the road to a pit. While Ramzan Ali was beating me, Barkya brought the bottle of petrol and poured it on my person and in the mean time my husband threw a lighted stick on my person and set me on fire. At that time there being at a nylon saree on my person it immediately caught fire. I started shouting at that time and while shouting I proceeded to the road. On seeing this Ramzan Ali and Barkya ran away. By that time I had reached on road and one tempo arrived there. I stopped the tempo and I narrated the whole incident to the persons abroad. Thereafter they reached me at the Sassoon Hospital. On account of Ramzan Ali having given me a knife stab and having set me on fire I have sustained injuries on stomach, right hand side back, both the hands, and thighs. At the place mentioned above and on the date and time mentioned above my husband and Barkya by beating me, by giving me a knife blow and pouring petrol and setting me on fire have tried to commit my murder which was a pre-plan.'
Apart from the fact that in every dying declaration there have been improvements in view of the story put up in this crying declaration that even at the initial stage, the deceased had protested to the proposal of going to Alandi because she was afraid of her husband and the possible beating at his hand, her voluntarily agreeing to travel the long distance seems to be unnatural. After covering some distance even his friend had joined. This did not put Zarina on guard. They also stopped at a hotel. Accused is reported to have beaten Zarina by hand in the first instance and thereafter stabbed her by knife three times. All this also looks equally unnatural. In this connection, the evidence of Dr. Panse (P.W. 8) is significant. Only one injury has been found on the person of the deceased and that too in the left inguinal region and not on the stomach. Dr. Panse has admitted that such an injury could be caused by any blunt object and the possibility of such injury have not been caused on account of the rolling of Zarina on earth, cannot be ruled out. Indeed Doctor has admitted that such injury could be caused by rolling on the earth. In this back ground, the presence of blood stains on the saree assumes no importance whatsoever. What is most important is that in the medical examination no injury on the stomach is found. We find it difficult to accept the continuously improved version in the dying declaration as truthful. It is pertinent to notice that even in this fourth dying declaration there as been no reference to the stoppage at the hotel. If the plan was to murder Zarina as stated by the prosecution it looks wholly unnatural that the husband or his friend start with beating by hand. The fifth and the last dying declaration is recorded by the Sub-Divisional Magistrate, Shri Kulkarni (P.W. 9) on 27-10-1980 at about 4-05 p.m. In this dying declaration we find that there is still one more improvement. Zarina has stated that she was taken to Alankar theatre forcibly. Apart from the fact that it was not possible to take Zarina forcibly to a theatre, even (P.W. 7) Shalini has given an altogether different version of what happened before the departure of Zarina to Alankar theatre. These improved versions and the story put up stabbing on the stomach in the dying declaration does not at all get support from the medical evidence and this by itself is a weighty circumstance to discard the dying declarations as being truthful. In the last dying declaration there is no reference to the knife. All this renders the story of pouring petrol on the clothes of the deceased and her stabbing by knife by accused looks highly improbable. We are, therefore, not at all satisfied that the dying declarations are truthful.
12. In the whole back ground, the possibility of a lady like Zarina implicating the accused falsely in the incident, cannot be altogether ruled out though it is difficult to accept that this was a case of a suicide. After all it is not for accused to demonstrate as to what actually must have happened at the time of the incident. All that we have to see is whether the prosecution has proved the case beyond any shadow of doubt. It is difficult to see what accused had to gain by committing the murder of Zarina. He being a Mohammedan could have easily taken talaq. If it was his plan to murder the wife it is also unnatural that he would send Salim with a cinema ticket and a message. The accused had the order of Court in his favour appointing him as guardian of the son Samir and also an ex parte decree for the restitution of conjugal rights which he had successfully obtained on the very day of the incident. He was keen to have the child which was with him. Thus the evidence about existence of the so-called motive namely his relationship with Salma the cousin sister, in the whole back ground does not appear to be established. For all these reasons disagreeing with the learned Sessions Judge and giving benefit of doubt to the appellant accused, we acquit him of the charge of murder.
13. In the result, the appeal is allowed and the conviction and sentence recorded by the learned Additional Sessions Judge, Pune, under section 302 of the Indian Penal Code, against the accused is quashed. The appellant be set at liberty forthwith if not required in any other case. Bail-bonds be cancelled.