JUDGMENT [ENTITY], J.
1. The appellant was put on trial in [CASE NUMBER] before the learned 2nd Addl. Sessions Judge, Jalgaon, for the offence punishable under [SECTION] and [SECTION] of the [ACT] (the Code, for short) and by the judgment and order dated 17-8-1999, he came to be convicted for an offence punishable under [SECTION] of the Code, whereas, he has been acquitted for the offence punishable under [SECTION] of the Code. He has been sentenced to suffer RI for life with a fine of Rs. 100/-, in default, to suffer RI for seven days for the offence punishable under [SECTION] of [ACT] and he has been in custody from 12-5-1998, as has been noted by the court below.
Being aggrieved by the said order of conviction and sentence, this appeal has been moved before us. By the order dated 18-2-2000, the prayer of the appellant for bail was rejected.
2. The deceased [ENTITY] d/o [ENTITY] (PW5), r/o village Utran was married to the appellant sometimes in the year 1997 and it was alleged that she was often subjected to beating and harassment by her husband in the state of intoxication. Even after her marriage, she had continued to stay with her parents on account of such behaviour of the appellant. On the assurance given by the accused and his parents of proper treatment, she was sent to her matrimonial home along with the accused. On the date of the incidence i.e. 12-5-1998, she was seen in flames while being at matrimonial home and a Fire Brigade vehicle of Pachora Municipal Council had rushed to the spot to extinguish the fire. [ENTITY] (DW1), father of the appellant, rushed to the spot after he came to know about the incident and with the help of his son [ENTITY] and one another boy, lifted the deceased in the Fire Brigade vehicle and took her to the Municipal Hospital at Pachora, where, she was treated by Dr. [ENTITY] (PW6) at about 12 noon. He informed the police and accordingly, Head Constable [ENTITY] (PW7) recorded the dying declaration (Exh. 27) of [ENTITY]. Immediately, thereafter, Mr. [ENTITY] (PW8), the Special Executive Magistrate, on the requisition sent by the police, also went to the hospital and recorded the dying declaration of [ENTITY] (Exh. 32). She had allegedly stated in both these dying declarations that her husband had suspected her illicit relationship with his cousin [ENTITY] and that she had conceived from the said relationship. He poured Kerosene on her person at about 11 a.m. while both of them were in the house and set her on fire. Thereafter, he ran away and she was taken to the hospital for treatment, but she did not know who had brought her to the hospital.
While under treatment, [ENTITY] breathed her last on the same day at about 3 p.m. and therefore, the earlier crime registered for the offence punishable under [SECTION] of the Code was converted to an offence punishable under [SECTION] of the Code. PSI [ENTITY] (PW9) took over the investigation, recorded the Inquest Panchanama as well as Spot Panchanama, Exh. 13 and Exh. 18, respectively. The cause of death was recorded as "shock due to extensive burns, superficial plus deep, 100%".
In the meanwhile, [ENTITY] (PW 5) was given message and he also arrived at Pachora. He did not file any complaint. The accused was arrested on the same day i.e. 12-5-1998 about 8 to 9 p.m. under arrest panchanama (Exh. 19) and a shirt on the person of the accused came to be seized under the same Panchanama. The said shirt along with other articles collected from the spot was sent for chemical analysis and the CA report (Exh. 38) was received. PSI [ENTITY] (PW9) recorded statement of witnesses, including some of the neighbours and on receipt of the CA report as well as completion of the Investigation, filed chargesheet in the court of learned JMFC, Pachora. The case being triable exclusively by the Sessions Court, committal order was passed on 17-11-1998. The charge (Exh. 3) was framed by the learned Addl. Sessions Judge on 22-12-1998.
3. The defence had taken a specific plea (Exh. 4) and it was claimed that [ENTITY] had committed suicide in the absence of any of the family members and while she was alone in the matrimonial home at about 11 a.m. on 12-5-1998.
4. The prosecution examined in all nine witnesses, two of them being police personnel i.e. [ENTITY] (PW 7) and [ENTITY] (PW 9). [ENTITY] (PW 8) was the Executive Magistrate. Dr. [ENTITY] (PW 6) was the Medical Officer on duty.
The prosecution case has been accepted by the trial Court solely on the basis of two dying declarations i.e. Exh. 27 and Exh. 34.
5. Shri [ENTITY], the learned Advocate for the appellant - accused, submitted before us that both the dying declarations (Exh. 27 and 34) suffered from grave infirmities and they do not inspire confidence, so as to base the conviction and to hold that [ENTITY] died a homicidal death and not a suicidal death. He pointed out that the defence, in addition to having taken a specific plea, has also examined [ENTITY] (DW 1) in support of its case that at the relevant time [ENTITY] was alone at the house and the accused was at his panshop. Once the defence has discharged this burden by adducing proof, it was necessary for the prosecution to prove its case beyond reasonable doubt that [ENTITY] died a homicidal death and the accused was the author of the same and none else. Regarding the validity of the dying declarations, Shri [ENTITY], relied upon a judgment of this court in the case of [PRECEDENT] and the subsequent decision in case of [PRECEDENT].
6. Shri [ENTITY], the learned APP, on the other hand supported the order of conviction and sentence. It was submitted that both the dying declarations are consistent and have been recorded in normal course, in presence of Medical Officer viz. Dr. [ENTITY] (PW6). The writers of the dying declarations viz. [ENTITY] (PW 7) and [ENTITY] (PW 8) were examined before the trial Court and their testimony, regarding the mental condition of the deceased, has been supported by the oral evidence of Dr. [ENTITY] (PW 6). He referred to the Constitution Bench decision in the case of [PRECEDENT], and urged that the dying declarations were required to be accepted as proper and without suffering from any infirmities. Both these dying declarations were recorded by public servants and there was no reason to suspect the bona fides of any of these officers.
In view of this, we have to examine the dying declarations and more so, because it is admitted by the defence that [ENTITY] died of burn injuries and the issue that is required to be considered by us is : Whether the prosecution has proved beyond doubt that [ENTITY] died a homicidal death and at the hands of the accused.
7. We will first consider the 2nd dying declaration (Exh. 34), as recorded by the Special Executive Magistrate, [ENTITY] (PW 8). He stated that on [2-5-1998, he received the requisition (Exh. 31) from the police at 12.45 hrs. to record the dying declaration of [ENTITY] and therefore, he rushed to the municipal hospital. He requested the Medical Officer on duty viz. Dr. [ENTITY] (PW 6) to examine [ENTITY] and on examination, the doctor declared that she was conscious. He then proceeded to record her statement after disclosing his identity to [ENTITY]. She told him that her husband used to beat her, suspect that she was carrying from his brother a pregnancy of two months, he then poured Kerosene on her person and tried to put her on fire. She did not know who had brought her to the hospital. The said statement was read over to her and she endorsed that it was true and correct. Her thumb impression was obtained which was duly attested (Exh. 32). He also agreed that the endorsement of the Medical Officer was recorded on the dying declaration in his cabin and he had kept the said dying declaration with him in a sealed envelope till he handed it over to Head Constable [ENTITY] (PW 7) on 30-6-1999.
We must note, at this stage itself, that [ENTITY] (PW 7) was examined by the trial Court on the earlier day i.e. 29-6-1999 and till then, this dying declaration (Exh. 34) was not before the court.
In the cross-examination, [ENTITY] (PW 8) stated that he was familiar with the procedure of recording of dying declaration and it was necessary to record the time of starting and ending the recording of the dying declaration. He was also aware that it was necessary to record in questions and answers and other details as well as he was required to put the preliminary questions before proceeding to record the statement of the injured so as to ascertain that the injured was well oriented and fit to understand the questions. He admitted that he might have asked 2 to 3 questions to [ENTITY] and she answered those questions. Her face was partly burnt and the Medical Officer didn't put any question to [ENTITY]. He did not ask her as to who extinguished the fire. A thumb impression was attested by some person knowing her, but he could not identify the person. After recording the statement, he went to the Medical Officer who was sitting in his cabin and obtained his signature indicating that the patient was conscious. It took about 5 to 6 minutes to record the statement and he was in the hospital between 12.25 to 12.35 p.m. He agreed that the dying declaration was kept in a sealed envelope (Exh. 33) and till 30-6-1999 it was not submitted before the court and there was also overwriting on the said envelope. He was shown the earlier dying declaration at (Exh. 27) recorded by [ENTITY] (PW 7) and he admitted that both the dying declarations were recorded simultaneously and in verbatim and both the writers jointly went to the Medical Officer for obtaining his endorsement regarding the patient being conscious.
8. We have given our anxious considerations to the dying declaration (Exh. 34) and we do not find ourselves in agreement with the court below. This dying declaration suffers from more than one infirmities. The dying declaration was all the time in the custody of the witness himself (PW 8)and no explanation is coming for this retention for about more than a year. It did not carry the endorsement of the Medical Officer regarding the patient being in a fit condition when its recording started and the endorsement was obtained at the end by approaching the doctor who was sitting in his cabin.
[ENTITY] had received 100% burn injuries. She was admitted in the hospital at about 12 noon. She died at about 3 p.m. and the doctor in his depositions stated that the patient was in "shock due to extensive burns", her brain was congested and in such a condition, the patient may go in coma. The testimony of the doctor also indicated that he was not present near [ENTITY] when her statement was being recorded by [ENTITY] (PW8).
On the other hand, [ENTITY] (PW8) had stated that it took about ten minutes to record the dying declaration (Exh. 34) and Dr. [ENTITY] (PW 6) was attending the patient. In the next sentence, he stated that Dr. [ENTITY] (PW 6) was sitting in his cabin, he went inside and took the signature of the doctor.
We have noted that the dying declarations (Exh. 27 and 34) are identical in language, word by word and testimony of [ENTITY] (PW 8) indicated that both these dying declarations were jointly recorded, only the handwriting was different. The evidence of Dr. [ENTITY] (PW6), as recorded before the trial Court, does not inspire confidence to rely upon the dying declaration at Exh. 34. We, therefore, discard the same as being unreliable.
9. Now, coming to the first dying declaration at Exh. 27 recorded by the Head Constable [ENTITY] (PW. 7), we have noticed from his depositions that he was on duty as "Thane Ammaldar" between 8 a.m. to 2 p.m. on 12-5-1998. At about 12.15 hrs. he received a telephonic message from the Medical Officer Dr. [ENTITY] (PW 6) that [ENTITY] was admitted in the hospital on account of burn injuries. He then issued a letter to the Executive Magistrate requesting him to record the dying declaration. He rushed to the hospital, met Dr. [ENTITY] (PW 6), who, on his request examined [ENTITY] and declared that the patient was conscious and he then proceeded to record the statement of [ENTITY]. He had put few preliminary questions to test her mental condition and having noted that she was well oriented, proceeded to ask her regarding the incident. She told him that she was carrying for about 2 months and her husband was suspecting that she had conceived through his cousin [ENTITY]. He used to beat her and poured Kerosene on her person and set her on fire. The said dying declaration was read over to her and she admitted the contents to be true and correct. He then obtained her left hand thumb impression. On the basis of the said dying declaration, [CASE NUMBER] for the offence punishable under [SECTION] and [SECTION] of the Code was registered and subsequently, PSI [ENTITY] (PW 9) took the investigation. He admitted in cross examination that when he went to the hospital, [ENTITY] was lying quiet making no movements and Dr. [ENTITY] (PW 6) was attending her. He stated that it was not necessary to mention the time when the recording of dying declaration was started and completed. He also did not find it necessary to endorse that the statement was recorded in the presence of the Medical Officer. He further stated that the Executive magistrate Mr. [ENTITY] (PW 8) did not visit the hospital during the time he was present there. He admitted that there were 2 to 3 persons around [ENTITY] when he recorded the statement, but he did not know their relationship with her and that they were sent out.
Dr. [ENTITY] (PW 6) in his depositions admitted that [ENTITY] had received 100% burn injuries and she was in shock due to extensive burns. On receiving his information, one Police Officer had come to the hospital and requested to examine [ENTITY] and to opine whether she was in a fit condition to give a statement and accordingly, he examined her and found that she was in a fit condition to give a statement. Accordingly, he had put such an endorsement on the paper produced by the Police Officer. He was present near [ENTITY] when the said Police Officer interrogated her. He agreed that the dying declaration was recorded by the Police Officer as per the replies given by [ENTITY]. He further stated that [ENTITY] was admitted in the hospital at about 12 noon and the Police Officer started recording her statement after half an hour of her admission, which means, that [ENTITY] (PW 7) recorded the statement of [ENTITY] at about 12.30 p.m. on 12-5-1998.
[ENTITY] (PW 8), in his depositions before the trial Court, has stated that he recorded the dying declaration of [ENTITY] between 12.25 to 12.35 p.m. though on the dying declaration he had endorsed that he recorded it between 12.30 to 12.35 p.m. Added to this, PSI [ENTITY] (PW 9) stated before the trial Court while in the witness box that he reached the hospital at 12.30 p.m. so as to interrogate [ENTITY], but the Medical Officer informed him that she was not in a position to make any statement. He, therefore, left the hospital and reached the spot of incidence and called [ENTITY].
10. The dying declaration (Exh. 27) as recorded by [ENTITY] (PW 7) is clouded by number of infirmities. When the Medical Officer Dr. [ENTITY] (PW 6) stated that she was in conscious state to make the dying declaration and it was recorded in his presence, PSI [ENTITY] (PW 9) clearly stated that at about 12.30 p.m. when he went to the Medical Officer, he was informed that [ENTITY] was unconscious and therefore, he could not record her statement. Head Constable [ENTITY] (PW 7) did not record the time of recording of the dying declaration (Exh. 27) and as per the reply given by the Medical Officer, it appears that it was recorded at about 12.30 p.m. The evidence of these three witnesses i.e. [ENTITY] (PW 7), [ENTITY] (PW 8) and [ENTITY] (PW 9) read together indicated that all of them were present in the hospital at 12.30 p.m. on 12-5-1998 for the same purpose i.e. recording of dying declaration. The IO returned because he was informed by the doctor that [ENTITY] was not in conscious condition to make a statement, whereas, other two claim that the doctor expressed that the patient was in a fit condition and therefore, they proceeded to record the dying declaration. [ENTITY] (PW 8) agreed that it was jointly recorded by him and [ENTITY] (PW 7). Dr. [ENTITY] (PW 6) admitted in his depositions that the patient was in shock and had received 100% burn injuries.
The contrary statements made by these two police officers and the Executive Magistrate and to some extent, the depositions of the Medical Officer, do not permit us to rely upon any of these dying declarations.
We have noted that [ENTITY] (DW 1) and his son [ENTITY] were present in the hospital. The Hospital, Police Station and office of the Executive Magistrate are located in the same premises.
11. In the case of [PRECEDENT], , it has been held that in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction.
In the case of [PRECEDENT]., , on the reliability of the dying declaration and the conviction being based on a sole dying declaration, their Lordships stated thus :
"A dying declaration, if found reliable, can form the basis of conviction. A Court of facts is not excluded from acting upon an un-corroborated dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence. It is, as if the maker of the dying declaration was present in the Court, making a statement, stating the facts contained in the declaration, with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to cross-examination. If in a given case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the Court may as a rule of prudence look for corroboration and if the infirmities be such as render the dying declaration so inform as to prick the conscience of the Court, the same may be refused to be accepted as forming safe basis for conviction." It is further clarified that:
"A singular dying declaration not suffering from any infirmity and found worthy of being relied on may form the basis of conviction."
12. When the case of the prosecution is solely based on the dying declaration, it must be tested with utmost care and caution and if so tested, we have no doubt in our mind that even the first dying declaration (Exh. 27) does not inspire confidence and therefore, the same has to be discarded.
Shri [ENTITY], the learned A.P.P., at this stage, referred to the observations in para 3 in the Constitution Bench decision in the case of [PRECEDENT] (supra). Even in the said decision, the Apex Court has laid down the precautions and the measures to be kept in mind while weighing the evidentiary value of the dying declarations. If the dying declaration is being examined as corroboration to other evidence, the case may be different viz. even preponderance of probability may weigh, but when the dying declaration is the sole evidence in support of the prosecution case, it has to be scrutinized minutely and it must inspire confidence to rely upon it. In the instant case, on one hand, Dr. [ENTITY] (PW 6) stated that [ENTITY] was conscious when the dying declaration was recorded by [ENTITY] (PW 7), but in the next breath, he admitted that she was in shock and had received 100% burn injuries. Added to this, the statement of the PSI [ENTITY] (PW 9) who stated that he approached Dr. [ENTITY] (PW 6) at 12.30 p.m. on 12-6-1998 and he was informed by the doctor that [ENTITY] was not in a condition to make statement and therefore, he returned without recording her statement. We, therefore, do not agree with the view taken by the trial Court in basing the conviction under [SECTION] on these two dying declarations.
13. We may proceed to examine the prosecution case on the basis of circumstantial evidence and keeping in mind the principles laid down in the case of [ENTITY] and Anr., .
The presence of the accused in the company of the deceased, when she was set on fire, has not been established and this missing link in the chain has impaired the prosecution case.
There was one circumstance on which the prosecution wanted to rely upon and that is the CA report, which stated that the shirt which was sent for analysis by the IO (Article A-2) detected Kerosene smell. However, [ENTITY] as well as arrest of the accused was not supported by the sole Panch Witness i.e. [ENTITY] (PW 3), who stated that no person was arrested in his person.
In the course of investigation, the IO had recorded the statements of some persons on 12-5-1998 including the statement of [ENTITY] and her daughter [ENTITY]. They had claimed to be the eye witnesses, inasmuch as, immediately after they heard shouts of the deceased, they had seen the accused climbing down the staircase and running away from the house. During the trial, summons were issued to [ENTITY], she had received the summons, but the prosecutor filed a pursis and declined to examine her. On the other hand, [ENTITY] came to be examined as court witness and she did not support the prosecution case. Add to this, statement of PSI [ENTITY] (PW 9), who had gone to the spot, in his cross examination stated that at the time of incident, [ENTITY] was alone in the house, accused was in his panshop and her father-in-law had gone to the grocery shop to bring [ENTITY].
14. The defence, having taken a plea that [ENTITY] was alone in the house and she committed suicide, had examined [ENTITY] (DW1) and he stated on oath before the trial Court that at the time of the incident, the accused was at his panshop and he himself had gone to the grocery shop. This testimony of [ENTITY] (DW 1) has been supported by PSI [ENTITY] (PW 9). Mr. [ENTITY], the learned APP, referred to the depositions of [ENTITY] (DW 1) and brought to our attention that [ENTITY] (DW 1) had admitted that the accused was missing for some time and had not come to the hospital till [ENTITY] died. It is true that the accused had come to know about the incident at about 12 noon and he was not around the hospital or house, till he was produced in the Police Station at about 8 p.m. on 12-5-1998. But that, by itself, would not be a circumstance to hold that he was present in the house at the time of incident.
Thus, weighing the prosecution case in any of these circumstances, we find that even on the basis of circumstantial evidence, it has failed to prove that it was the accused who had set [ENTITY] on fire. There may be circumstances giving rise to strong suspicion regarding involvement of the accused, but unless it is proved beyond reasonable doubt, that he was involved in setting [ENTITY] on fire, the prosecution case cannot be accepted and the view taken by the trial Court does not appeal to us. In this regard, we may usefully refer to observations made by their Lordships in case of [PRECEDENT], in the following words:
"It is no doubt a matter of regret that a foul cold-blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted."
15. For the reasons recorded hereinabove, we hereby allow the appeal and quash and set aside the order of conviction and sentence recorded by the learned 2nd Addl. Sessions judge, Jalgaon, dated 17-8-1999, in [CASE NUMBER]. We, accordingly, acquit the appellant under [SECTION] of [ACT]. The appellant be released from jail forthwith, if not required in any other crime.