{1} Cri. Appeal No.336/2010 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.336 OF 2010 1. Kashibai w/o Srimant Bansode APPELLANTS Age-65 years, Occ-Household, (At present in jail) R/o Bhimnagar, Ausa Tq-Ausa, Dist-Latur 2. Vanita w/o Rajesh Sasane Age-30 years, Occ-Household (At present in Jail) R/o Sidharth Nagar, Housing Society, Latur VERSUS The State of Maharashtra RESPONDENT Through in-charge officer, Police Station, Ausa, Tq-Ausa, Dist-Latur ....... Mr.A.R.Salve, Advocate for appellants Mr.N.R.Shaikh, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 26 th July 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. The appellants, who stand convicted for an offence {2} Cri. Appeal No.336/2010 punishable u/s 302 r/w 34 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs. 1000/- each in default of which to undergo further RI for three months, by Ad Hoc Additional Sessions Judge-3 Latur, vide judgment dated 12.05.2010 rendered in Sessions Case No. 99/2009, by this appeal, question the correctness of their conviction and sentence. 2. Prosecution case, as unfolded during the trial, may briefly be stated thus- a) PW-11, ASI, Laxman Nidwanche, attached to Civil Hospital Police Chowki at Latur, on receipt of MLC, on 21.06.2009 that Ashwini (deceased) was admitted in the Civil Hospital, on account of sustaining burn injuries, had contacted the medical officer, however, as the injured was not in a position, the statement could not be recorded. Thereafter, on 23.06.2009 at about 5.00 pm he recorded statement (Exhibit-54) of Ashwini, after ascertaining from the medical officer that the victim was in a fit condition to give statement. Thereafter, on 24.06.2009, PW-6 Suryakant Sakhare, Naib Tahsildar, recorded dying declaration (Exhibit-44) of Ashwini between 5.10 and 5.40 pm. Thereafter, both the statements (Exhibit-54 and 44), were forwarded to Ausa police station on 25.06.2009 and an offence at Crime No.78/2009 came to be registered u/s 307, 498A, 504 r/w 34 of the Indian Penal Code. {3} Cri. Appeal No.336/2010 b) Investigation of the said crime was taken over by PI Mohan Kamble (PW-13). Spot Panchanama (Exhibit-30) was drawn on 21.06.2009 i.e. even before registration of the offence. A plastic container, containing some liquid substance and some partially burnt pieces of clothes were seized from the spot. c) On 26.06.2009 Ashwini succumbed to the burn injuries. Accordingly, Inquest Panchanama (Exhibit-24) was drawn and the dead body was forwarded for postmortem examination. PW-5 Dr.Shrikant Chandekar, who conducted the postmortem on the dead body, noticed 53% burn injuries and according to the medical officer the death caused due to shock resulting from burn injuries. Accordingly, Postmortem report (Exhibit-38) came to be issued. The appellants came to be arrested on 26.06.2009. Thereafter, statements of certain witnesses came to be recorded. The seized property was sent to CA for chemical analysis. Subsequently, the CA report (Exhibit-64) came to be received. After transfer of PW-13, further investigation was taken over by API Pujari, who after completion of investigation filed charge sheet before JMFC, Ausa. d) On committal of the case to the Court of Sessions, trial Court framed charge (Exhibit-12) against both the appellants for an offence punishable u/s 302, 498A 504 r/w 34 of the Indian Penal Code. The appellants abjured their guilt and claimed to be {4} Cri. Appeal No.336/2010 tried. Prosecution, in support of its case, examined in all 13 witnesses. The defence of the appellants was of total denial and their false implication. On appreciation of the evidence on record, trial court convicted the appellants for an offence punishable u/s 302 r/w 34 of the Indian Penal Code, however acquitted them of the charge of offence punishable u/s 498A and 504 r/w 34 of the Indian Penal Code. Admittedly, acquittal of the appellants of the offence punishable u/s 498A and 504 r/w 34 is not under challenge. 3. In order to appreciate the submissions advanced before us by learned counsel for the appellants and learned APP for respondent State, it would be appropriate to advert to the evidence of the witnesses examined before the trial court. 4. Perusal of the record indicates that the conviction of the appellants is based principally on the oral dying declarations given by deceased Ashwini to PW-4 Sanjay and PW-9 Lakhan as well as the written dying declarations at Exhibit-44 and Exhibit-54. 5. The appellants have not disputed that the death of Ashwini is an unnatural death due to burn injuries, however, according to them, they are not the authors of the injuries sustained by Ashwini which ultimately resulted in her death. Therefore, the point for our consideration is that as to whether the {5} Cri. Appeal No.336/2010 dying declarations, written as well as oral, are sufficient to infer that the death of Ashwini is homicidal and the appellants are the authors of the same. 6. PW-4, Sanjay Dhokale, uncle of deceased Ashwini states that Ashwini and her husband used to reside at Pune and used to visit at Ausa, occasionally. He also states about demand by the appellants from Ashwini of Rs.50,000/- for purchase of Rickshaw. He further states about ill-treatment given to Ashwini by the appellants on account of her failure to bring the money as demanded by them. Ashwini had informed him that the appellants have threatened her that if she did not bring the money they would set her ablaze. Prior to two months of the incident, Ashwini had started residing at Ausa, along with her husband and two children with the appellants. About the incident, he states that after receipt of message, he immediately rushed to Latur and went to Civil Hospital, where the deceased was admitted. On his query, the deceased had informed him that on 21.06.2009, appellant No.1 poured kerosene on her person and while she attempting to rescue and started running outside the house, appellant No.2, by igniting a match stick, set her ablaze. Her husband-Vasant, poured water on her person and extinguished the fire. He came to know on the early morning of 26.06.2009 that Ashwini succumbed to the burn injuries. In cross examination he states about love marriage of Ashwini with Vasant, son of appellant No.1 and brother of appellant No.2. He further states that as father of Ashwini was no {6} Cri. Appeal No.336/2010 more, after marriage Ashwini started residing at Pune at her maternal house along with her husband Vasant. Vasant-husband of deceased Ashwini was looking after the mother and minor brother of Ashwini at Pune and they were leading a happy married life at Pune. About 15 days prior to the incident the deceased had came to Ausa to reside there. He had not visited Ausa after Ashwini shifted there. He admitted that at the time of incident appellant No.2 was carrying 5/6 months pregnancy. He admits that in the civil hospital, condition of the deceased was serious and she was suffering from serious pain. Her hair were singed. Mouth and lips of the deceased were burnt and she was unable to speak. He has admitted that he was unable to see the injuries and painful condition of the deceased. He remained along with the deceased only for about 10 to 15 minutes. When he saw the deceased in the hospital, saline was administered to her. Omissions have been duly proved in his cross examination that the facts that Ashwini some times used to reside at Pune and some time at Ausa, Ashwini was residing along with the appellants at Ausa and that other relatives were present in the hospital, do not find place in the statement of this witness recorded by the police. Contradictions are also proved in his cross examination that he has not stated in his statement before the police that after two years of marriage Ashwini complained of ill-treatment by the appellants. So also he has not stated in his statement before the police that Ashwini had informed him at Pune, prior to two months of the incident, about the ill- treatment given to her by the appellants. {7} Cri. Appeal No.336/2010 7. Evidence of PW-9 Lakhan is on the similar lines as that of the evidence of PW-4 Sanjay. Additionally, he states that prior to two months of the incident, the deceased had started residing at Ausa. Deceased had informed him on telephone about the demand by the appellants of Rs.50,000/- to purchase an auto. On receipt of message about Ashwini sustaining burn injuries, he, along with his close relatives, rushed to Civil Hospital Latur on 24.06.2009. On his inquiry, Ashwini had disclosed that while she was washing utensils, appellant No.1 poured kerosene on her person and appellant No.2 set her ablaze by igniting a match stick. Her husband extinguished the fire. In cross examination, he states that marriage of appellant No.2 was solemnized 5/6 years prior to the incident and her matrimonial house is at Latur. He had never visited Ausa since marriage of Ashwini. Appellant No.1 was serving as maid servant for her livelihood. Husband of the deceased used to reside at Pune even before their marriage. Even after marriage, the couple used to reside at Pune along with them. The couple used to visit at Ausa for 1 or 2 days and they were leading a happy married life. When he came in civil hospital, husband of the deceased and their son was along with the deceased. Deceased had sustained burn injuries on her lips and chicks and her face was swollen. She was moaning and was repeatedly asking for water, however the doctor had advised not to provide water to her. Ashwini was getting annoyed for not giving water to her and she was finding it difficult to speak. Her hair were intact and not {8} Cri. Appeal No.336/2010 singed. Omissions are duly proved in his cross examination that the facts that Ashwini and her husband used to reside some time at Pune and sometime at Ausa and that Ashwini was residing along with her husband and appellants together at Ausa, do not find place in his statement recorded by the police. 8. PW-11, ASI Laxman has stated in his evidence that on 21.06.2009, while he was on duty at Police Chowki at Civil Hospital, Latur, he had received a MLC about admission of Ashwini in burn patient ward. Thereafter, he had enquired with the medical officer, who informed that Ashwini was not in a position to give her statement. Therefore, he had recorded statement of Ashwini on 23.06.2009 at about 5.00 pm after she was examined and certified by PW-8 Dr.Swami that she was in fit condition to give her statement. According to him, Ashwini had disclosed him that appellant No.1 used to told her that she had given huge dowry to her daughter and hence was asking the deceased to bring money from her parents house to purchase an auto. On 21.06.2009, at about 8.00 to 8.300 am, while she was washing utensils, appellant No.1 asked her to bring money or else to go out of her house to which the deceased had declined. Ashwini further disclosed him that, thereafter, appellant No.1 brought a kerosene can and poured kerosene on her person and appellant No.2 set her ablaze. She further disclosed to him that at that time husband of the deceased was present in the house and on hearing her shouts he rushed there and poured water on her person and tried to extinguish the {9} Cri. Appeal No.336/2010 fire. Her husband had shifted her to the hospital at Ausa from where she was referred to civil hospital at Latur. Thus, PW-11 ASI Laxman has proved the contents of the dying declaration (Exhibit-54) recorded by him. He further states that after recording of the dying declaration (Exhibit-54) was over, the same was read over to the deceased, which she admitted to be true and correct. After recording of the dying declaration was over, she was examined by Dr.Swami, who had put his endorsement on the dying declaration accordingly. This witness, in his cross examination, states that on receipt of MLC on 21.06.2009, at about 9 pm he had been to the burn patient ward of civil hospital, Latur and contacted Dr.Swami, who informed him that Ashwini was not in a position to give her statement. Mother of Ashwini was present along with her in the hospital. He had not made any attempt to record the statement of the victim on 22.06.2009, nor inquiry was made with the medical officer in respect of mental and physical fitness of the deceased. In further cross examination he states that even in the afternoon on 23.06.2009, when he contacted the concerned medial officer, he had informed that condition of Ashwini was critical and she was not in a fit condition to give her statement. Accordingly, endorsement was made by the medical officer in the medical case papers. On 23.06.2009, at about 5.00 pm he recorded statement (Exhibit-54) of Ashwini after she was examined by the medial expert. At the time of recording statement, Ashwini was moaning due to severe pains. Saline and injections were given to her. It required about an hour to record the statement (Exhibit-54). {10} Cri. Appeal No.336/2010 During the period of an hour, Ashwini could have uttered about 100 sentences. He could not answer as to why timings of commencement and conclusion of statement are not mentioned on the dying declaration. He also admits that the thumb impression appearing on the dying declaration was not attested and affixed to indicate that it was the thumb impression of the deceased. He also admits that though the offence of attempt to commit murder was disclosed, yet no crime was registered in any police station at Latur. He could not explain as to why the statement (Exhibit-54) was not immediately forwarded to the concerned police station for registration of offence. 9. The dying declaration (Exhibit-54) is required to be considered in the light of evidence of PW-8 Dr.Swami, Medical Officer. PW-8 Dr.Swami states that on 23.06.2009, when statement of Ashwini was being recorded by PW-11 ASI Laxman, he had certified that Ashwini was in a fit condition to give the statement. However, admits, in the cross examination, that history of injuries, as recorded in medical papers, disclose that the victim had received the burns accidentally due to explosion of stove. He further admits that he did not treat Ashwini personally, however notes were taken in the medical case papers by the concerned medical officers. He also admits that looking to the burn injuries received by Ashwini there were very rare chances of Ashwini surviving. Pain killers and seductive drugs were given to Ashwini in order to reduce her pains. He also admits that, as per the {11} Cri. Appeal No.336/2010 medical case papers, volveron was given to Ashwini, due to which drowsiness is caused. He states that as per the medical papers it appears that the said treatment was given to Ashwini continuously since 21.06.2009. He further admits that as per record fortusin and phenargun was started to Ashwini from 23.06.2009. He categorically admits that condition of Ashwini was deteriorating day by day and there was swelling all over her body and her voice was feeble due to pain. He has further stated that front portion of the body was burnt more than the back portion and this could have caused if the fire is caught from front side of the body. 10. It is in the evidence of PW-6 Suryakant Sakhare, Naib Tahsildar, that on 24.06.2009 at about 5.00 pm he, on receipt of requisition letter, had gone to civil hospital Latur and recorded the statement (Exhibit-44) of Ashwini, after Dr.Gayatri Solanki (PW-12) examined and certified that Ashwini was in a fit condition to give her statement. Ashwini had disclosed him that both the appellants, by pouring kerosene on her person, had set her ablaze at 8.00 am. She also disclosed that when her clothes caught fire, she raised alarm and on hearing her shouts, her husband came there and extinguished the fire by pouring water. It was further disclosed by the deceased that the appellants used to take quarrel with her and were insisting her to bring money from her parents. She had disclosed to the Executive Magistrate that her husband had shifted her in the hospital and the appellants were asking her to tell everybody that she sustained the burn injuries as her sari {12} Cri. Appeal No.336/2010 fall on a stove, however she refused to do so by saying that she does not wear sari. After her dying declaration (Exhibit-44) was recorded the same was read over to her, which she admitted to be true and correct and her right hand thumb impression was obtained on the statement. According to this witness, Dr.Solanki was present throughout while the statement of Ashwini was being recorded. After recording of the statement was over, Dr.Solanki (PW-12) had put an endorsement regarding fitness of the injured. In cross examination he admits that he has no knowledge as to when the dying declaration (Exhibit-44) was forwarded to the concerned police station. He had not received any letter from the Civil Hospital Police Chowki requesting him to record the dying declaration. In further cross examination he states that about 30 minutes required to record the dying declaration (Exhibit-44). He further admits that though at two places in the dying declaration whitener has been applied, yet he has not initialed at the said places. He also admits that face and lips of the victim were severely burnt and her face was swollen. She was severely suffering from pains and was moaning, however she answered the questions in full sentences. 11. Exhibit 44, is conspicuously silent on the point that after recording of the dying declaration, the same was read over to the injured, which she admitted to be true and correct. Evidence of PW-6, Executive Magistrate, scribe of dying declaration at Exhibit-44 requires to be considered in the light of evidence of {13} Cri. Appeal No.336/2010 PW-12, Dr.Solanki, who had examined the injured before and after her dying declaration (Exhibit-44) was recorded. 12. Dr.Gayatri Solanki (PW-12) states in her evidence that on 24.06.2009, after arrival of PW-6 Naib Tahsildar Sakhare, she had examined Ashwini and found that she was well oriented and was able to give statement and had accordingly put an endorsement on the dying declaration before commencement of recording of the same. She further states that she was present throughout, when dying declaration (Exhibit-44) was being recorded. Even after recording of the dying declaration was over, she had examined the injured and put an endorsement that Ashwini was conscious and well oriented through out recording of her statement. She admits in her cross examination that the record referred to her was maintained in the civil hospital during its regular course of administration and it was correctly maintained. Referring to the said medical record she admits that condition of Ashwini was not stable and there were no hopes of her survival. She after going through medical record, admits that the medicines prescribed in the same were administered to the injured. She further admits that fortwin was given to the injured which causes drowsiness. She further admits that to minimize the pains, pain killers were given to Ashwini. She further admits that there was mild swelling on the mouth, nose and tongue of Ashwini and due to the swelling her pronunciation was affected. However, she denied that Ashwini was not in a position to speak clearly, fluently {14} Cri. Appeal No.336/2010 and properly. She also admits in her further cross examination that due to pains irritability gets increased, however denied that delirium gets increased due to pains. She further admits that mental fitness and consciousness are two different factors. 13. In the light of the evidence discussed above, we have heard learned counsel for the appellants and learned APP for respondent State. Learned counsel for the appellants asserted that though husband of Ashwini was present at the spot at the relevant time, yet he has not been examined by the prosecution and the said act amounts to suppression of facts and hence adverse inference, against the prosecution, ought to have been drawn by the trial court. According to learned counsel for the appellants, husband of the deceased was the only person, who was not brought before the trial court, who might have thrown light on the entire episode. It is further urged that from the two dying declarations (Exhibit-54 and 44) it is clear that the deceased was staying with appellant No.1 about two months prior to the incident while appellant No.2 is the married sister in law and she was residing at her matrimonial house at Latur and not at Ausa. It is further urged that the alleged incident took place on 21.06.2009 and it is clear from the evidence of PW-11 and PW-8, who have scribed the dying declarations (Exhibit-54 and 44) that till 23.06.2009 Ashwini was not in a condition to give her statement and hence it is risky to rely on the dying declaration (Exhibit-54) recorded on 23.06.2009 and Exhibit-44 recorded on 24.06.2009. It {15} Cri. Appeal No.336/2010 is further urged that from the medical record and evidence of PW-8 Dr.Swami, it has to be inferred that Ashwini was not in a fit state of mind to give her statements, allegedly recorded at Exhibit-54 and 44. It is also urged that perusal of the contents of both the dying declarations coupled with the oral dying declaration made by the deceased before PW-4 and PW-9, there is variance in respect of the role attributed to individual appellant and hence none of the dying declaration inspires confidence and therefore, should be discarded and left out of the consideration. It is further submitted that if one dying declaration is accepted then it falsifies another. Therefore, it is requested to allow the appeal and acquit the appellants from the charge with which they were convicted and sentenced. 14. Per contra, learned APP supported the findings recorded by the trial court while convicting the appellants for an offence punishable u/s 302 of the Indian Penal Code. 15. Considering the rival submissions, we may usefully refer the observations of the Division Bench of this Court in “Shahu Parshu Rathod V/s State of Maharashtra” 2006 (1) Bom.C.R. (Cri) 120, to which one of us (P.V.Hardas, J) was a member. The Division Bench, in the said judgment has observed thus - “The dying declaration should inspire full confidence of Court in its truthfulness and correctness. There are glaring contradictions in both dying {16} Cri. Appeal No.336/2010 declarations of the deceased. The deceased does not seem to be certain as to how incident had taken place. It is settled law that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of the circumstances and with reference to principles governing the weighing of evidence. It is impermissible to pick and choose either of the dying declarations. It would be against law if we select a dying declaration which helps the prosecution by filling in the lacunae in the prosecution story.” 16. We may also usefully refer the observations of the Division Bench of this Court in “Kamalbai Gorakh Koli & Ors. V/s State of Maharashtra” 2011 ALL MR (Cri) 1406 to which both of us are members. In the said judgment it is observed thus- “In cases resting on multiple dying declarations the Courts expect consistency in respect of the crux of the facts leading to incident. Mere repetition of allegations against one of the accused would not render both the dying declarations acceptable.” 17. We may further usefully refer to the observations of the Supreme Court in “Smt.Kamla V.s State of Punjab” AIR 1993 SC 374, wherein it is observed thus- “It is well settled that dying declaration can form the sole basis of conviction provided that it is free from {17} Cri. Appeal No.336/2010 infirmities and satisfies various tests (vide Khushal Rao V/s State of Bombay, 1958