Criminal Appeal No.579 of 2014

1st September, 2016.

Petitioner Counsel: Mr. R.M. DAGA
Respondent Counsel: Mr. N.R. RODE, A.P.P.

Cases Cited:
Peddireddy Subbareddi Vs. State of A.P., AIR 1991 SC 1356 [Para 5]
Alil Mollah Vs. State of W.B., 1996 (5) SCC 369 [Para 5]
Kamalabai Gorakh Koli Vs. State of Maharashtra, 2011 ALL MR (Cri) 1406 [Para 5]
Rama Gopal Pawar Vs. State of Maharashtra, 2004 ALL MR (Cri) 2393 [Para 5]
Manohar Dadarao Landge Vs. State of Maharashtra, 2000(2) Mah.L.J. 3 [Para 24]
Rambhau Laxman Uikey Vs. State of Maharashtra, 2015 (12) LJ Soft 7 [Para 25]

JUDGMENT

B. P. Dharmadhikari, J. :- This appeal under Section 374 Criminal Procedure Code, is by the three accused convicted and sentenced to life imprisonment under Section 302 Indian Penal Code by the Sessions Court, Nagpur in Sessions Trial No. 319 of 2012 on 21.11.2014. Baburao Tukaram Umredkar accused no. 4 was acquitted by that Court.

2. Shri R.M. Daga. learned Counsel for the appellants submit that Trial Court has relied upon the two eye witnesses, two dying declarations of deceased Mithun and his oral dying declaration. The alleged eye witnesses contradict each other. PW-9 Panchafula is mother in law of deceased and still she did not attempt to help Mithun or inquire from her daughter or approach Police. Her statement is recorded after the arrest of accused and two days late. She is planted later on and therefore, she did not speak of the second Bouddha Vihar as she could not and did not witness the incidence. She could not depose about the genesis of crime PW-10 Bandu Jagtap does not even take name of any particular accused or Panchafula. The two dying declarations contain inherent lacunae. There is no valid certificate of Doctor about deceased being conscious or fit to give such dying declarations, no explanation about alleged signature on first dying declaration, toe impression or thumb impression on later dying declaration. The alleged requisition sent by police to Special Magistrate, Shri Kamble (PW-4) is also not proved. Neither eye witnesses nor any dying declaration inspire confidence.

3. He argues that the oral declaration is also not substantiated. PW-1 Satyafula informs police initially that Mithun took name of accused no. 1 Vinod @ Gopi. only. Though both the Investigating Officers speak of taking entry in station diary, that entry is not produced. Involvement of accused no. 2 - Dhamma is, by way of after thought and hence can not be accepted. Mithun also therefore, has added name of Dhamma in his dying declaration, if at all any such dying declaration was given by him. Evidence of PW 1 Satyafula also creates doubt about the actual spot as she saw Mithun removing burning shirt and discarding it. Rahul Pantawane accompanied her to police station but, police never recorded his statement. Complaint by Rahul of alleged assault by the accused persons on him, as recorded in station diary at 20.20 Hrs. militates with alleged burning incidence.

4. Absence of Scooty Pep used allegedly by Vinod, its non-mention anywhere in the prosecution evidence are also adversely commented upon by him. Apart from this, he also points out that Section 313 statements of all the accused were recorded on 30.11.2013, and thereafter, on 06.11.2014, the charge was reframed. Earlier accused nos. 2 and 3 were roped in with help of Section 109 of Indian Penal Code, but, after said statements, they were substantively charged under Section 302 Indian Penal Code read with Section 34 thereof.

5. To buttress the submissions on conduct of near relative like Panchafula, delay in her statement, standard of evidence and absence of proof to rely upon oral dying declaration or even written dying declarations (DD) at Exhs. 40 and 31, and effect of omission to put incriminating material to accused during Section 313 statements; learned counsel Shri R.M. Daga, has drawn support from AIR 1991 SC 1356 (Peddireddy Subbareddi vs. State of A.P.) (paragraph Nos.3 and 4); 1996 (5) SCC 369 (at page No.372)- (Alil Mollah vs. State of W.B.); 2011 ALL MR (Cri) 1406 (Kamalabai Gorakh Koli vs. State of Maharashtra) (paragraph Nos.9 and 14), and 2004 ALL MR (Cri) 2393- (Rama Gopal Pawar vs. State of Maharashtra) (paragraph No.7).

6. Shri Rode, learned A.P.P. in his arguments points out that charge under Section 302 read with Section 34 of the Indian Penal Code, was framed against all accused before commencement of recording of evidence itself, and mention of Section 109 therein has been only deleted later on. This has not prejudiced any of the appellants. After this modification, chance was given to parties to lead evidence again. Appellants/ accused persons vide Pursis Exh. 109, declined to use that opportunity.

7. He strongly relies upon evidence of eye witness P.W.9 - Panchphula and other eye witness P.W.10 Bandu Jagtap to urge that they viewed the incidence independently, are consistent and describe role of all three appellants before this Court. Coupled with this, he relies upon spot panchanama (Exh.60), to show that burnt pieces of shirt were also seen on the spot by police and panchas, as such there cannot be any dispute regarding the identity of spot. The special vehicle of lame accused Vinod @ Gopi was also found on the spot. Thus, arguments of Shri Daga, learned counsel for the appellants about prosecution failing to establish the spot itself are misconceived.

8. Incident of burning occurred on 22.02.2012 while Mithun with 42% burns expired on 16.03.2012. In this backdrop, inviting attention to dying declarations at Exhs. 31 and 40, learned A.P.P. submits that complete documents relating to said recording are not shown to this Court. Police Head Constable who recorded dying declaration at Exh.40 has initially obtained clearance of PW-7 Dr. Amol Dhoran on Exh.39, and after Doctor declared/ certified Mithun to be in a fit condition, he proceeded to record dying declaration. This Head Constable P.W.6 - Mahadeo, has also obtained certificate in margin of Exh.40 that it was recorded in presence of Doctor. This according to learned A.P.P. shows that Mithun was keeping proper fitness throughout the process. Said dying declaration therefore has been right accepted by the trial Court.

9. According to learned A.P.P., this dying declaration is corroborated by the dying declaration recorded on next day i.e. on 23.12.2012 by Shri Trimbak Kamble, Special Judicial Magistrate. PW-4 recorded formal dying declaration at Exh.31. This person also obtained certificate of fitness before proceeding to record that dying declaration from Dr. Amol (P.W.7). After completing the process, he has again obtained certificate from him, at its end. This dying declaration is also on same lines and consistent with Exh.40. P.W.7 - Dr. Amol Dhoran, has supported both these dying declarations and accepted certificates issued by him. The dying declarations therefore, are properly established by the prosecution. They also inspire confidence and hence, must be acted upon.

10. Oral dying declaration made by Mithun immediately after the incidence to his mother P.W.1 - Satyafula, is also pressed into service by him. The said dying declaration and report accordingly by Satyafula to police, led to investigation by P.W.14 (Investigating Officer No.1) Chandrahar Godse and P.W. 13 (Investigating Officer No.2) Sunil Jaiswal. These officers have supported the oral dying declaration. Strong reliance is placed upon station diary entry at Exh.44 to urge that it shows that earlier Mithun was burnt, and thereafter there was an attack on Rahul Pantawane. Residue of petrol found on clothes of accused no.1 and accused no.2 and Chemical Analyzer's report at Exh.19, are pressed into service by him for this purpose. Learned A.P.P. submits that disability of accused no.1 Vinod could not have come in the way of pouring petrol on person of Mithun. Application of mind by the learned trial Court in paragraph nos. 36 and 37 of its judgment is pointed out by him. He also draws support from various judgments and prays for dismissal of the appeal.

11. Details of rival contentions call for mention at the stage of appreciation thereof, Hence, we have very briefly narrated the same here.

12. First in point of time is the alleged oral dying declaration by Mithun to his mother Satyafula. PW 1 - Satyafula points out the naming ceremony celebrated at her house, visit of accused No.2 - Dhamma first to her house to inquire about Mithun and, thereafter, visit by accused No.1 Vinod. She also states that Mithun who was then taking food, went with accused no. 1 on his vehicle. Deposition reveals that when she saw Mithun again, his both hands were burnt and she saw him removing his burning shirt and throwing it away. Mithun uttered names of Vinod and Dhamma as persons setting him on fire. However, in her police statement name of Vinod is only recorded and name Dhamma, does not figure as name disclosed to her by Mithun and she could not assign any reason for its omission. If her police statement is accepted, Mithun, in alleged oral dying declaration, has taken only name of Vinod @ Gopi. Throwing of shirt or the genesis of crime has also come as an omission. PW 14 - Godse, the investigating officer also states that as per alleged oral dyeing declaration, it is accused No.1 Vinod only who burnt Mithun. He also points out that PW 1-Satyafula and Rahul Pantawane came to the police station. Name of this Rahul is also spoken of by Mithun in his dying declaration at Exh.40 as his Mama i.e., as maternal uncle, who was attacked in presence of Mithun, only when he tried to rescue Mithun. However, Rahul is not examined by the prosecution. Similarly, note of information given by PW 1-Satyafula in police station, immediately after alleged oral dying declaration, taken in station diary, is important, but, that station diary entry is not brought on record. Other investigating officer PW13 - Jaiswal also points out that the station diary entry of information given by PW 1-Satyafula was taken. But, then it has not been produced on record. The station diary entry Ex. 44, recorded at 22:20 hours on 22.02.2012, is about accused persons beating Rahul Pantawane with wooden sticks and there is no mention therein of Mithun being set on fire by the accused persons, Rahul attempting to intervene to save Mithun in it. Incidence of setting Mithun on fire does not figure there at all and the alleged attack on maternal uncle Rahul at the same spot, figures as an independent crime. In this attack on Rahul, name of one Meena Umredkar is also included as one of the accused. Hence, prosecution indirectly implies that accused persons, after setting Mithun on fire, were waiting there only.

13. So far as State is concerned, the report to police by PW-1 Satyafula is first in point of time and immediately after the burning. Hence, when at that juncture, only name of Vinod was informed to police, addition of other names in written dying declaration by Mithun creates various doubts. The perusal of Exh. 31 itself reveals that sentence about alleged instigation by Harishchandra is most probably an addition made later on. This inference is possible because of apparent space constraint, and hence use of small handwritten letters. Insertion is obviously by the PW-4 - Special Judicial Magistrate Shri Kamble, who recorded Ex. 31. We are not reading this as tampering, as it has not been put to Shri Kamble and he was given opportunity to clarify. But, Kamble himself could have made clean breast of matter and stated that as role of Harischandra was disclosed later by Mithun, and Mithun wanted it to be added, he added it in his presence and with his consent. He also could have taken its note in the end of dying declaration as a part of continuous process with similar remark. But, such an addition in available place ought to have been avoided. This is one more circumstance for doubting and to discard Ex. 31.

14. The arrest panchnama of accused No.1 Vinod @ Gopi shows that he is lame and his legs are paralyzed. He, therefore, uses a special vehicle with more than two wheels. Such a disabled person cannot get up and pour petrol on any person or set him on fire. Clothes of Vinod @ Gopi are seized on 23.2.2012, and because of a hole found, caused by burning on his shirt, the Trial Court uses it as an indication of his involvement in the crime. His clothes are not sealed after seizure and PW-13 also does not state that same were sealed. These clothes are forwarded to the chemical analyzer on 17.3.2012. Till then, where this property was lying is unknown. In this situation, finding in the chemical analyzer's report, at Exh.19, of petrol residues on clothes of Vinod or any other accused, is unacceptable. There is also positive CA report about the clothes of accused No.2 - Dhamma seized vide Exh.66. No question has been put to any accused about petrol found on their clothes and the chemical analyzer's report itself is not put to them while recording their Section 313 Criminal Procedure Code statement.

15. Our attention is invited to discussion in paragraph Nos.36 and 37 of the judgment of the Trial Court to show how the Trial Court finds that a disabled person while sitting on three wheeler could have put petrol on lower part of body of Mithun and set him on fire. But, when the three wheeler itself is not identified by anybody, and not connected with Vinod by the prosecution, we find this inference legally unsustainable. A Scooty Pep of Pink Colour finds mention in Exh.60 i.e. spot panchanama. However, during entire trial it has not been put to any witness and has not been identified as vehicle used by the accused no.1 Vinod @ Gopi. Perusal of spot panchnama reveals that mention of this vehicle therein as property, is in different handwriting. According to P.W 8 - Yeshwant,the vehicle of Vinod was four wheeler, while according to P.W.2 - Vijay it was three wheeler. If petrol was poured while sitting on it by Vinod on the person of Mithun, the production of said vehicle in trial and its identification by eye-witnesses or others was must. This has not been done. If Vinod was handicapped and therefore, could not have escaped, he could not have left the spot without vehicle. Therefore, after setting Mithun on fire, he could have vanished only by riding it. Its' presence at the spot therefore, may militate with the theory of prosecution about attack on Mithun. The Trial Court has in operative part of its judgment, also directed return of this Scooty to relative of Vinod. Learned APP could not show the basis for this direction. However, as the existence of any such vehicle itself has not been conclusively established on record by the prosecution through any witness, we need not dwell more on this issue.

16. After this oral dying declaration, the police come across the eye-witnesses. Mother-in-law (PW-9 Panchafula.) of the deceased Mithun claims to be the eye witness, but, then she does not raise any hue and cry to save him or then proceed to her daughters house to find out or inquire about his health. She had no knowledge of naming ceremony held at the house of Satyafula. She also does not go to police station immediately or then contact police stating that her son-in-law is burnt, and she witnessed it. Normally, her vegetable shop remains open in the evenings only and between 4 PM to 9.00 PM. But, on 22.02.2012, her shop was open even at 9.15 PM or 9.30 PM when the alleged incidence occurred. Her testimony appears doubtful, because she denies existence of second "Bouddha Vihar" in the area while other eye witness admits it. PW-9 Panchafula resides in a side lane and spot is not visible from her home. If there are two bouddha vihars, the spot relied upon by the prosecution becomes doubtful. Moreover, the accused persons were arrested on 23.02.2012, and statement of PW-9 Panchafula under Section 161 Criminal Procedure Code came to be recorded thereafter on 24.02.2012. This delay also casts serious doubt on her presence at the spot. She also does not speak of any dispute between the deceased and accused on recovery of money or any quarrel about it.

17. If we examine the spot panchanama Ex. 60 and accompanying map, it becomes clear that it does not show either the foot path or the vegetable shop of this PW-9 Panchafula.. Not only this, it does not depict even the one or the other "Bouddha Vihar". It has been prepared on 22.02.2012 between 22.35 to 23.50 hrs. It is important to note that the eyewitness Panchafula as also PW-1 Satyafula, both claim that they saw Mithun removing his burning shirt and throwing it away. Satyafula was not present at the spot even as per prosecution. How this could happen is not clear from record.

18. Other Eyewitness PW-8 Bandu Jagtap does not take name of any accused and employs the word Umredkar family. He states that loud talk was going on between the deceased and Umredkar family. Who are those members is not clarified by him. He only speaks of pouring petrol and Mithun, being set ablaze, but, does not say that any member of Umredkar family or then any accused did it. Though he identified accused nos. 1 to 4 present in Court, he does not ascribe any particular act to them together or separately. Prosecution has not declared him hostile. Thus, this eyewitness also does not advance the case of prosecution.

19. The police head constable Mahadeo (PW 6) recorded the first dying declaration at Ex. 40 on 22.02.2012. It records that same was read over to Mithun and he accepted it to be correctly recorded and it is true. This dying declaration is signed by the deceased, but, then there is no certification on it by any medical practitioner about Mithun being conscious and fit to give it. On this Ex. 40, Doctor Dhoran has only certified in margin on first page that Mithun has deposed orally in his presence. History of previous dispute between deceased and accused appearing, as narrated by Mithun is not supported by any other material on record. PW-6 has deposed that fitness certificate was given by the PW-7 doctor on Ex. 39 i.e., requisition given by him to PW-7 before proceeding to record the dying declaration. But, then this Ex. 39 is an independent paper which does not find mention in Ex. 40. If PW-6 was certain that he had gone their to record dying declaration, he would have definitely mentioned the fitness in body of Ex. 40 only. Remark on Ex. 39 is by PW-7 - Doctor Dhoran is "Patient is giving oral evidence along with fitness." Thus, Dr. Dhoran does not state here that he examined the patient and found him fit to give the statement. This throws cloud of doubt on Ex. 40.

20. Other dying declaration at Ex. 31 is recorded by the Special Executive Magistrate PW-4 - Shri Trymbak Kamble on 23.02.2012. He could not prove the requisition received by him for its recording. The IO has deposed that he never issued any such requisition. His office may have issued it, but, then it is not produced by the prosecution. This dying declaration also carries a mention on its first page that it is recorded after the medical officer examined Mithun and declared him fit for it. Ex. 30 is the requisition issued by this witness to Doctor Dhoran and on it, in margin, Dr. Dhoran has certified that patient is conscious, oriented and fit to give valid statement. There is no fitness certificate on Ex. 31 or even at the end of recording of the alleged dying declaration. Executive Magistrate has obtained left toe impression on this dying declaration after finishing the statement of Mithun. This toe impression is on second page at its bottom and there is no space on said page thereafter to add anything more. On next page i.e., page no. 3, which is the last page of the dying declaration, there is only a certificate by PW-4 that statement has been recorded as per say of patient Mithun. It is read over and accepted to be correct. Doctor was present while recording it, Fitness certificate of Doctor is enclosed. Below this certificate, on right side of 3rd page, there is signature of Kamble, date and then his name is written in hand and below it seal (stamp) of Special Judicial Magistrate, Nagpur, appears. Then on left side, an impression of thumb or toe appears. Below this impression words "Thumb of Mithun Jadip Raut" appear in Marathi. Thereafter, below these words English translation of same words appear in different handwriting and below it there is signature of Dr. Dhoran. We may here point out that on first page only formal questions and answer thereto are recorded in same format. Thereafter at the bottom in bracket in Marathi, it is noted that above questions were put to above patient and he was giving answers properly. Hence, recording his statement was continued further. Thus page no. and page no.3 of this dying declaration at Ex. 31 are therefore not containing any incriminating material. That material is contained in its page no. 2 only.

21. Hence, on the page in which the actual dying declaration i.e., incriminating part appears, there is no endorsement by the Doctor. Below the second impression, which is on last page, the medical officer has mentioned that in his presence the said thumb impression of Mithun was obtained. According to Magistrate, this later impression is also of toe, while as per Doctor, it is of thumb. Thus, this controversy creates serious doubt about the correctness of the assertions of Doctor PW-7 and Magistrate. Both these important prosecution witnesses are inconsistent and militate with each other and prejudice the prosecution case. It follows that, if PW-4 - SJM Kamble has acted honestly, Doctor Dhoran was not present when toe or thumb impression of Mithun on last page was obtained. Thus, Doctor Dhoran has made incorrect endorsement below that impression. If Doctor Dhoran was present, then it implies that PW-4 Kamble is giving wrong version. Mere look at the bottom portion of second page reveals the space constraint forcing PW-4 SJM to reduce the size of his handwriting words "before me" and his sign appear not above or below the so-called toe impression, but, by its side. The line indicating that it is impression of toe of Mithun Jaidip Raut's left foot, could not be written in straight line and its later part swings little below or downwards, due to placement of said toe impression. This space constraint and effort to adjust in available place, the words that statement has been recorded as narrated and accepted to be correct is, also apparent to naked eye. Time of finishing the recording as 6.45 evening, remark that "recorded by me", sign of PW-4, seal and date all appear in left corner at bottom of page as inserted there. If recording was an ongoing process and a contemporaneous act, then the recording could have been easily continued on next page i.e., at page 3. The space constraint obviously became necessary, as the so called toe impression already existed on second page at its bottom. There is no other reason for use of such small letters and crowding of the important events at the end of page number no.2 of Ex. 31.

22. As per post mortem report (Ex. 28), both the hands of deceased were burnt fully i.e., 9% each ( 18% together) and hence, he could not have signed on previous day and put his thumb impression on next day. His impression either could have been of thumb or of toe. But, there could not have been such a doubt regarding it. This dying declaration right from initiation of its recording, or requisition till its completion, does not inspire any confidence. Here both the impression in dispute also shows ridges and curves clearly.

23. PW-7 Dr. Amol Dhoran also, except for pointing out his certificates and irrelevant endorsements on both these dying declarations, does not throw any light on the controversy and his crossexamination does shows that thumb impression of Mithun could have been obtained. It does not advance the cause of the prosecution. He does not state that he has given any fitness certificate at the end of recording of these dying declarations. More comments on this issue are unwarranted considering the alleged oral dying declaration by Mithun to his mother PW-1 Satyafula. This discussion, however, is sufficient to discard dying declaration at Ex. 31. Similarly, Dr. Dhoran (PW-7) is not trustworthy because he posses as a witness to the fact of obtaining thumb or toe impression not watched by him. As he looses his credit, Ex. 39 also becomes doubtful. Dr. Dhoran and PW-4 Kamble both can not be true on said impression of Mithun. Conviction, therefore can not be based on any of these dying declarations. If oral dying declaration is to be acted upon, Mithun does not name anybody except accused no. 1 Vinod @ Gopi. Hence, possibility that Mithun may have improved and added others in his dying declarations can not be ignored. This possibility also surfaces in relation to assault on his maternal uncle Rahul Pantawane.

24. In Manohar Dadarao Landge Vs. State of Maharashtra - 2000 (2) Mah.L.J. 3, Executive Magistrate mentioned that he obtained the impression of right big toe of deceased Savita. In the deposition, Executive Magistrate says that he obtained thumb impression of Savita. Witness - Tahsildar, did not say that he read over the statement to Savita, she admitted it to be correct and then he obtained thumb impression or toe impression on the statement. The Division Bench declares that conviction can not be based on such a dying declaration. The prosecution ought to have specifically brought on record that Savita had heard the statement recorded by the Executive Magistrate and she admitted it to be true and correct. This is not mere formality but, an essential part while recording the dying declaration. Because the person who cannot be examined afterwards, must at least, at that time, should have confirmed correctness of the recording. This Division Bench also states that the Doctor must depose about the general physical condition of the patient before stating whether patient was physically and mentally fit to give the statement, and that evidence can be brought on record by producing the relevant case papers.

25. In Rambhau Laxman Uikey Vs. State of Maharashtra - 2015 (12) LJ Soft 7, the Division Bench when there was no explanation as to how the first and third declarations were having the thumb impression, whereas the second declaration had the impression of right great toe and the medical evidence and post mortem report revealed that both the hands and the legs of the deceased were burnt, whereas the dying declaration shows that ridges were present in the thumb impression, it created a doubt regarding the genuineness of the dying declaration.

26. Genesis of crime brought on record by the deceased like attack on his maternal uncle Rahul Pantawane by the accused while setting Mithun on fire, is not supported by PW-9 Panchafula. She does not speak anything about it. Not only this but the other eye witness PW-10 Bandu Jagtap also does not speak of said attack or then presence of eyewitness PW-9 Panchafula at the time of incidence. He points out loud talk between Mithun and Umredkar family. He does not state that accused poured petrol on deceased or ignited him. He admits the existence of other "Bouddha Vihar" and also accepts that incidence would not have been seen by PW-9. He does not utter anything about abetment or instigation by the other accused persons. Deceased Mithun points out abetment by Harischandra (accused no. 3) at the end of first dying declaration at Ex.40, In Exh. 31, he speaks of instigation by brother of Vinod. Mithun has not taken any name of said brother. PW-10 Bandu Jagtap does not take any names or use name of any accused. He has only used the words "Umredkar family". In view of station diary entry Ex. 44, he may mean Meena Umredkar also. She is not the accused in this case.

27. From Ex. 44, it is seen that police constable Sunil (Buckle no. 1714) and Rahul Pantawne proceeded to spot to search for accused who burnt Mithun and they were assaulted. Names of attackers are Vinod, his two brothers and Meena Umredkar. If Rahul was already at the spot once and he was then attacked, he has witnessed the incidence in which Mithun was set on fire. He also goes with his sister PW-1 Satyafula to lodge the police report. Still, he is not cited as eyewitness or a witness. Hence, either he is not an eyewitness or was never attacked as claimed by Mithun or prosecution is keeping him back with some other purpose. But, then this position definitely harms the prosecution case. It affects credit of eyewitnesses and Mithun also.

28. The most important and independent piece of evidence to support either PW-1 Satyafula or PW-9 Panchaphula would have been the shirt, which Mithun removed from his person and discarded while running away from the killers. Though learned APP relies upon the spot panchanama to urge that from said spot pieces of that burnt shirt is recovered, we find that spot only mentions pieces of burnt cloth and not that the same were of shirt or of any clothes worn by the victim Mithun. Nobody has identified it as burnt shirt of Mithun. Had it been established as shirt, the spot could have been definitely pinpointed and prosecution then may have taken its support to explain the other evidence. Failure of the prosecution to draw and prove a spot panchanama and map showing necessary landmarks is beyond comprehension. We have gone through the precedents relied upon by Shri Daga, learned counsel and Shri Rode, learned A.P.P. and in this matter where decision is being reached only on facts, with respect, do not find it necessary to refer to the law mentioned therein.

29. The contention about framing of charge after Section 313 Criminal Procedure Code. statements of the accused as raised is misconceived. Charge on the basis of which all accused contested the trial itself implicated them all together in opening part, but, in later part, Section 109 Indian Penal Code is invoked only against the accused nos. 2 to 4. Trail Court, perhaps after hearing the arguments, realized the error and continued with implication of all together under Section 302 read with Section 34 Indian Penal Code. They could have after the charge was reframed, instead of filing a pursis at Ex. 109, demanded to further crossexamine the witnesses or lead evidence. We need not delve more into this controversy, since for the reasons recorded supra, as they are being acquitted, this contention is need not be pressed by them.

30. Thus, both the dying declarations at Ex. 40 and 31 are liable to be discarded, and can not form the basis for conviction. For the reasons noted supra, the evidence of the eye witnesses is inadequate to rope in the accused persons. Even oral dying declaration of Mithun is not proved satisfactorily. The prosecution itself has not approached with any consistent and convincing story. We accordingly allow their appeal and proceed to pass the following order:-

· ORDER ·

(I) Criminal Appeal is allowed.

(II) The judgment and order of conviction delivered by the Sessions Judge, Nagpur in Sessions Trial No. 319/2012, is quashed and set aside. The appellants / accused persons be set at liberty, if their custody is not required by State in any other case.

(III) Fine amount, if any, paid by the appellants/accused be refunded to them.

(IV) Seized muddemal property be dealt with as directed by the trial Court, after the appeal period is over.

Appeal allowed.