- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMIINAL APPEAL NO.608/2008 Mohan s/o Bhagwan Pawar, age 36 yrs., occu.agri., r/o Khamswadi Tq.Kallam Dist.Osmanabad. ...Appellant.. (Org.accused no.1) Versus The State of Maharashtra. ...Respondent... ..... Smt.S.S. Jadhav, Advocate for appellant. Shri B.V. Wagh, APP for respondent. ..... CORAM: P.V. HARDAS & A.V. POTDAR, JJ. DATE: 03.09.2010 ORAL JUDGMENT : (Per P.V. Hardas, J.) 1] The appellant – original accused no.1, who stands convicted for offence punishable u/ss.498-A and 302 of the Indian Penal Code, and sentenced to - 2 - rigorous imprisonment for three years and to pay fine of Rs.5,000/- with a default condition of undergoing further rigorous imprisonment for six months and imprisonment for life and to pay fine of Rs.5,000/-, by this appeal, questions the correctness of his conviction and sentence. 2] Such of the facts as are necessary for the decision of this appeal may briefly be stated thus: PW 10 Suryaji Nagargoje, ASI attached to Shivaji Nagar Police Station, Latur, received MLC letter from Dr.Lahane on 7.11.2006 at Exhibit 31. On receipt of the said MLC letter at Exhibit 31, PW 10 ASI Nagargoje proceeded to the hospital of Dr.Lahane at about 5 p.m. and contacted Dr.Lahane. He enquired from Dr.Lahane as to whether the patient was in a condition to give statement. In order to solicit the said information, he addressed the communication at Exhibit 32. Accordingly, Dr.Lahane and PW 10 ASI Nagargoje proceeded to the burns ward where Surekha, wife of present appellant, was admitted. Dr.Lahane examined Surekha and opined that Surekha was in a condition to give her statement. He thereafter recorded the statement of Surekha. Surekha disclosed that her husband and in-laws were ill-treating her by demanding Rs.50,000/- for the construction of house. She further disclosed that on 5.11.2006 at about 10 a.m., her husband came home under the influence of liquor and questioned her as to why she had not brought the amount of Rs.50,000/- from her parents. The appellant thereafter kicked her on her stomach, though she was pregnant by 8 months. On account of kicks, Surekha fell on the ground and thereafter the - 3 - appellant poured kerosene and set he ablaze. Surekha also disclosed that the neighbours extinguished the fire and her brother in law and the neighbours admitted her in the Civil Hospital at Osmanabad. The statement of Surekha recorded by PW 10 ASI Nagargoje is at Exhibit 60. ASI Nagargoje thereafter issued a letter to the Tahsildar for recording the dying declaration of Surekha at Exhibit 25. The statement of Surekha was forwarded to Kallam Police Station along with covering letter at Exhibit 60. PW 1 Sulabha Ausekar, Naib Tahsildar, received communication from Shivaji Nagar Police Station for recording the dying declaration of Surekha. She accordingly proceeded to Lahane Hospital at Latur and enquired from Dr.Lahane about the condition of Surekha. Dr.Lahane examined Surekha and opined that she was in a position to give her statement. Accordingly, PW 1 Sulabha Ausekar recorded the statement of Surekha. Surekha had disclosed to her that on 5.11.2006, her husband had asked her to water the wheat crop and as she had refused to do so, he had assaulted her with kick and fist blows. Surekha further disclosed that she began to shout and her husband poured kerosene on her from a plastic can and set her ablaze. She further disclosed that the fire was extinguished. She had also disclosed that her husband was present in the house. The statement of Surekha is at Exhibit 26. PW 7 PSI Ingale, who was attached to Shiradhon Police Station, received MLC from Lahane Hospital. Under the directions of PSI Ubale, he proceeded to Lahane Hospital on 12.11.2006 for recording the statement of Surekha. He accordingly requested Dr.Lahane to ascertain if Surekha was in a fit condition to give her statement. On examining Surekha, Dr.Lahane opined that she was in a fit condition to give her - 4 - statement. Accordingly, he recorded the statement of Surekha. Surekha disclosed that she had been ill-treated by her in-laws on account of demand of Rs.50,000/- for the construction of house. Surekha further disclosed that on 5.11.2006, her husband had returned home under the influence of liquor and had asked her as to why she had not brought the amount of Rs.50,000/-. The husband thereafter kicked her and brought kerosene from another room and poured kerosene on her and set her ablaze. Her husband thereafter went out of the house. Surekha also disclosed that she poured water and extinguished the fire. She had also disclosed that her husband had threatened her not to speak the truth, but to state that she had sustained the burn injuries due to bursting of stove. The said dying declaration is at Exhibit 47. 3] PW 9 PSI Ubale, who was attached to Shiradhon Police Station, received the statements of Surekha and accordingly arrested the accused on 12.11.2006. The scene of the offence – panchanama came to be drawn in the presence of witnesses on 13.11.2006 at Exhibit 40. From the scene of the offence, a kerosene can came to be seized. Thereafter, he recorded the statements of witnesses. Injured Surekha succumbed to her injuries on 1.12.2006 and the dead body of Surekha was referred for post mortem examination. Post mortem came to be conducted by PW 2 Dr.Pathak. PW 2 Dr.Pathak found that Surekha had sustained about 53% burn injuries. He opined that cause of death was septicemic shock due to superficial to deep burn injuries 53%. The post mortem report is at Exhibit 28 and the provisional certificate of cause of death is at Exhibit 29. The seized - 5 - articles were forwarded to the Chemical Analyser and further to the completion of investigation, a charge-sheet against the present appellant came to be filed. 4] On committal of the case to Court of Sessions, charge vide Exhibit 15 came to be framed against the appellant and two other accused. The accused denied their guilt and claimed to be tried. 5] Prosecution examined 10 witnesses in support of its case while the accused examined DW 1 Nasirkhan, Police Head Constable, who had recorded the dying declaration of Surekha at Exhibit 67 and DW 2 Dr.Sayyada Noorsharatjaha, who had examined Surekha. The trial Court, upon consideration of the evidence, convicted and sentenced the appellant – original accused no.1, as afore-stated, while acquitting the other two accused. 6] PW 8 Shivaji, father of deceased Surekha, states that after marriage, Surekha was initially treated well by the accused, but thereafter, the accused started ill-treating her. All the accused were insisting on Surekha to bring Rs. 50,000/- from her parents for construction of the house. The accused were also assaulting Surekha. According to PW 8, Surekha had informed him about the ill- treatment when she had come to her house to attend the festivals. He has further stated that his daughter had lodged a complaint with Mahila Takrar Kendra at Latur. Thereafter, the dispute between them was settled and the appellant- accused took Surekha with him at Khamaswadi. He states that he had learnt that - 6 - his daughter had been admitted in Civil Hospital and, therefore, he along with his wife had gone to Civil Hospital, Osmanabad. He states that Surekha had disclosed to him that when her in-laws were outside the house, her husband had poured kerosene on her and had set her ablaze. PW 8 Shivaji further states that Surekha disclosed to him that her husband had asked her to disclose to the Police that she had accidentally sustained the burns. He states that thereafter he admitted his daughter Surekha in Lahane Hospital at Latur. 7] Accused have examined DW 1 Nasirkhan, Police Head Constable, who, on 5.11.2006, was attached to Out Post in Civil Hospital at Osmanabad. He states that he had received the MLC on 5.11.2006 at about 12-30 p.m. and thereafter had contacted the Medical Officer in order to ascertain if Surekha was in a condition to give her statement. He recorded the statement of Surekha and Surekha had disclosed to him that on 5.11.2006, while she was cooking food in the house, due to the flaring of the stove, she had sustained the burns. This statement came to be recorded on 5.11.2006 between 3-00 p.m. to 3-15 p.m. 8] Accused have also examined DW 2 Dr.Sayyada Noorsharatjaha, who states that she was the Medical Officer attached to Civil Hospital, Osmanabad. She states that one Constable had asked her to examine Surekha and opine as to whether Surekha was in a fit condition to give her statement. She states that she had accordingly examined Surekha and had found that she was in a position to give her statement. The Constable had accordingly recorded the dying - 7 - declaration. The dying declaration recorded by DW 1 Nasirkhan is at Exhibit 67. 9] Insofar as the offence relating to Section 498-A of the Indian Penal Code is concerned, we find that the prosecution is successful in establishing the offence against the appellant-accused beyond reasonable doubt. The sole question is whether the prosecution has succeeded in proving the offence against the appellant-accused u/s 302 of the Indian Penal Code. In order to determine as to whether the prosecution has succeeded in proving the offence against the appellant-accused, a reference would be required to be made to all the dying declarations. 10] The dying declaration recorded first in point of time is at Exhibit 67. This dying declaration was recorded by DW 1 Nasirkhan on 5.11.2006 between 3-00 to 3-15 p.m. In this dying declaration, Surekha had stated that she had accidentally sustained burns while she was alighting the stove and as the stove had flared, she had sustained the burns. 10] The second dying declaration at Exhibit 60 was recorded by PW 10 ASI Nagargoje. In the said dying declaration at Exhibit 60, Surekha states that on 5.11.2006, her husband had returned home under the influence of liquor and on account of demand of Rs.50,000/-, had abused her and had kicked her. Thereafter, her husband had poured kerosene on her and had set her ablaze. She also states that her husband had then left the house and the neighbours had - 8 - extinguished the flames and her brother in law and the neighbours had admitted her in the hospital. 11] The third dying declaration came to be recorded by PW 1 Sulabha Ausekar at Exhibit 26. In the said dying declaration recorded by PW 1 Sulabha Ausekar, Surekha had stated that on 5.11.2006, her husband had asked her to water the wheat crop. But, Surekha had told him that it was not possible for her to do so. Her husband had, therefore, got angry and had remonstrated that wives of others were doing agricultural work and thereupon started assaulting her. Her husband had kicked her and, therefore, Surekha shouted. Her husband had scolded her that on account of her shouts, his prestige in the locality was lowered and, therefore, brought a can containing kerosene and poured on her and set her ablaze. She further states that her sister in law had asked her that she should not disclose that her husband had set her ablaze, but should disclose that she had accidentally sustained the burn injuries. 12] The fourth dying declaration came to be recorded by PW 7 PSI Ingale. In the dying declaration at Exhibit 47, Surekha states that her husband had returned home under the influence of liquor and had asked her as to why she had not brought Rs.50,000/- and accordingly had kicked her. She also discloses that her husband abused her and thereafter poured kerosene on her and set her ablaze and then went out of the house. She further states that she poured water and extinguished the flames and thereafter collapsed on the ground. She states that - 9 - her brother in law brought a jeep and admitted her in the hospital. She states that after about an hour, her husband came to the hospital and had threatened her that she should disclose that she had accidentally sustained the burns. 13] The evidence of the witnesses, who had recorded the four dying declarations, reveals that when the first dying declaration at Exhibit 67 was recorded, none of the relatives were present, but thereafter the relatives of Surekha were present when the other dying declarations were recorded. We have reproduced the contents of the dying declarations and perusal of the four dying declarations would clearly reveal that there are material variations, not only in respect of the prelude to the incident, but also in respect of the manner in which Surekha was set ablaze and the threats alleged to have been administered to her. According to us, therefore, it would be wholly impermissible to pick and choose any one dying declaration for sustaining the conviction. 14] The learned counsel for the appellant has placed reliance on the judgment of the Division Bench of this Court in Suresh Arjun Dodorkar (Sonar) V/s State of Maharashtra (2005 ALL MR (Cri), 1599). The Division Bench, while examining the multiple written dying declarations, has held thus: “In cases resting on multiple written dying declarations, the Courts cannot pick and choose any one dying declaration. All the dying declarations have to be consistent in respect of material aspects of the incident. According to us, consistency is expected in multiple dying - 10 - declarations in respect of the names and the number of accused, the prelude to the incident and the incident itself. In these two dying declarations, there is consistency in respect of the name and the number of accused. However, in respect of the prelude to the incident, there is variance. There is also variance in respect of the incident itself. The variance is apparent on perusal of the dying declarations and can be discerned from the perusal of the same. Therefore, according to us, no reliance can be placed on the two written dying declarations at Exhs.24 and 27, as acceptance of any one dying declaration necessarily renders the other as false. If in the dying declaration the truthfulness of the narration itself is rendered doubtful, no reliance whatsoever can be placed on the dying declaration. Merely because the overt act attributed to the accused is consistent in both the dying declarations would not make the dying declarations a reliable piece of evidence. The dying declaration has to pass all the tests of reliability as the declarant is not available for cross- examination. In cases where there are multiple dying declarations and acceptance of one dying declaration falsifies the other, the dying declarations have to be necessarily rejected. In our opinion, therefore, no reliance can be placed on the dying declarations at Exhs.24 and 27.” 15] Our attention has been invited to another decision of the Division Bench of - 11 - this Court in Md.Rafiq Md.Tajoddin V/s State of Maharashtra (2005 ALL MR (Cri), 972). The Division Bench in para 18 has held thus: “The variances in the multiple dying declarations vis-a-vis each other necessarily casts a cloud of suspicion regarding the truthfulness of the contents of the dying declarations. The dying declarations are shorn of the sanctity which is attached to the dying declaration and as a result of which the dying declarations cannot be made the foundation for sustaining a conviction. In cases of multiple dying declarations it is not permissible for the Court to pick up some facts from each of the dying declarations and use them as pieces of jigsaw puzzle to reconstruct an entirely new declaration. The dying declaration should be accepted in its entirety and it is impermissible to pick and choose pieces from the dying declaration. In the event of inter se discrepancies in the dying declarations, it is extremely unsafe to accept any one as a truthful narration, particularly in the absence of any other evidence which would render a particular version as a truthful version.” 16] On close scrutiny of the four dying declarations, it is clear to us that there are major variance in respect of the prelude to the incident and the incident itself. Even there is variance in respect of the alleged threats to Surekha by the appellant. In one dying declaration, Surekha refers to the threats being given to her by her sister in law. There is variance also in respect of the persons, who had - 12 - extinguished the flames. Thus, we find that no reliance at all can be placed on any of the dying declarations. The Court can not pick and choose any one dying declaration for sustaining conviction. In cases resting on multiple dying declarations, all the written dying declarations have to be consistent with each other. In the present case, acceptance of one dying declaration necessarily falsifies the other. The dying declaration has to pass all the tests of reliability and a conviction could only be based on the dying declaration if the Court finds the dying declaration to be reliable and a truthful version of the incident. We further find that dying declarations nos.2, 3 and 4 were recorded after arrival of her parents. Possibility of tutoring Surekha can not be ruled out, particularly in the face of the dying declaration at Exhibit 67, which was recorded first in point of time. Therefore, according to us, the appellant would be entitled to be given the benefit of doubt insofar as offence punishable u/s 302 of the Indian Penal Code is concerned. 17] In respect of the offence punishable u/s 498-A of the Indian Penal Code, the offence being proved against the appellant, the appeal will have to be partly allowed. However, the appellant has already undergone the period of imprisonment awarded to him for the offence punishable u/s 498-A of the Indian Penal Code. 18] Accordingly, this appeal is partly allowed and the conviction and sentence of the appellant – original accused no.1 for the offence punishable u/s 302 of the - 13 - Indian Penal Code is hereby quashed and set aside and the appellant is acquitted of the offence punishable u/s 302 of the Indian Penal Code. Fine, if paid by the appellant, be refunded to him. The conviction and sentence of the appellant in respect of the offence punishable u/s 498-A of the Indian Penal Code is confirmed. Since the appellant has already undergone the sentence in respect of the offence punishable u/s 498-A of the Indian Penal Code, the appellant be released forthwith, if not wanted in any other case. (A.V. Potdar, J.) (P.V. Hardas, J.) ndk/mbp