1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 1/1999 Anil Damodar Koshti, Age : 22 years, Occu. Agril., R/o Koli Wada, Faijpur, Taluka Yawal, District Jalgaon. ...Appellant. Versus The State of Maharashtra, through the Government Pleader, High Court, Bench at Aurangabad. ...Respondent. Shri P.V. Mandlik, Advocate for appellant. Shri T.S. Lodhe, A.P.P. for respondent. CORAM : A.V. NIRGUDE, J. Date : 16th November, 2010. ORAL JUDGMENT:- 1 This appeal is filed against the judgment and order passed by the learned IVth Additional Sessions Judge, Jalgaon dated 22nd December, 1998 convicting the appellant under Section 304 Part I of Indian Penal Code and sentencing him to suffer rigorous imprisonment for five years and to pay a fine of Rs.200/- with a default clause. 2 The appellant was charge sheeted for the offence of murder. The facts of case can in short be narrated as under. Deceased Rajani was the appellant's girl friend for four years. She was a divorced woman and was staying at village Faijpur. Her parents were her neighbours. The appellant was a unmarried person and had "live in" relationship with Rajani. During the four years of the relationship, Rajani even delivered two children. But they did not 2 survive. 3 On 14/12/1993 at about 6.00 p. m., when Rajani was alone at her house, the appellant came there and informed that he got engaged to a girl at Ujjain and he would marry her and that Rajani should forget him. Rajani got shock and she asked him, how he was forgetting the relationship of 4 to 5 years. There occurred quarrel between them. Rajani got annoyed. Rajani angrily held the appellant by his shirt collar and tried to prevent him from going outside. On this, the appellant said that he would burn her down. He then dowsed her with kerosene and set her on fire. Rajani came out shouting. Her neighbours came running to her help and tried to extinguish the fire. They took her inside her house. Within short time, Rajani’s parents came. They tried to provide her medical help. Till next morning, Rajani was still in her house. But thereafter, she was shifted to Municipal Hospital, Savada. 4 The police of Faijpur Police Station were informed about Rajani’s admission. The prosecution witness No.11 P.S.I. Sonawane recorded Rajani’s statement in presence of the Medical Officer. She narrated the incident and on the basis of which the crime was registered against the appellant. On 16th December, 1993 Police arrested the appellant and in presence of panch witnesses seized his cloths (and sent them along with other articles to the Chemical Analyzer). Later in the day, on 16th Rajani was sent to Civil hospital, Jalgaon & on the same day in the evening, the Executive Magistrate recorded Rajani’s dying declaration in presence of the treating Doctor. However, Rajani succumbed to the burn injuries after about seven days on 23rd December, 1993. The offence under Section 302 of Indian Penal Code was registered. 5 Eventually, the charge sheet was filed and the appellant 3 was tried. The prosecution examined in all 11 witnesses. But almost all witnesses turned hostile to the prosecution case, except the prosecution witnesses No.10 and 11 who had recorded dying declaration of deceased Rajani. Prosecution witness No.3 Kokilabai, the prosecution witness No.4 Rambhabai and witness No. 5 Jaibai are the neighbours of deceased Rajani. As said above, after Rajani was set on fire, she rushed out of her house and it is these witnesses who allegedly noticed her first. Though the prosecution case is that deceased Rajani informed these witnesses that it was the appellant who had set her on fire, these witnesses turned hostile to the prosecution case and deposed that Rajani told them that she had set herself on fire because of frustration. Prosecution witness No. 4 Rambhabai stated in the cross examination made by the learned Additional Public Prosecutor that Rajani was staying with the appellant in a live in relationship and that two children were born to them. She further admitted that the appellant intended to marry a girl from Ujjain. 6 Prosecution witness No.6 is Ramesh the father of Rajani who also surprisingly turned hostile to the prosecution case stated that Rajani was staying with him for five years prior to the incident. He said that in the evening of the incident when he returned home, he saw Rajani lying on a cot in burnt condition. He said, she was unconscious. He said, he provided her with medical treatment at home and then took her to Medical hospital, at Savada. He said, he had no talk with Rajani after the incident. Prosecution witness No. 7 is the Medical Officer who conducted autopsy on the dead body of Rajani. He stated that Rajani died due to septicemia following 75% deep burns. 7 The prosecution witness No. 8 was one Abdul Jalil who 4 said that he was a Medical Practitioner at Faijpur and that on 14/12/1993 at about 8.00 p. m., Rajani’s father Ramesh brought a woman to his dispensary. He said, the woman had 80% burns. He said, he did not treat her but advised Ramesh to take her to Savada Municipal hospital. 8 Prosecution witness No. 9 is police constable Sk. Ismail who stated that on 30th December, 1993 he took muddemal articles of the case to the office of Chemical Analyzer, Aurangabad along with a forwarding letter. He said, he delivered those articles at the Chemical Analyser’s office. 9 These articles were separately packed and sealed and as said above, this packet was also sent to the Chemical Analyzer for examination and to find out whether they contained residue of kerosene. The Chemical Analyser sent his report Ex. 40 and opined that the cloths of the appellant were found stained with kerosene. 10 The prosecution witness No. 10 was one Vitthal Patil who was working as the Executive Magistrate, Jalgaon in December 1993. He said that on 15/12/1993 at the request of the police, I went to Civil Hospital, Jalgaon at 9.55 p.m. and first met the Duty Medical Officer. He said, he and the Duty Medical Officer went to the patient (deceased Rajani). He said, Medical Officer examined Rajani and asked her if she was in a position to give her statement. The patient answered in affirmative. He said, he also felt that she was in a position to give statement. Thereafter, he said, he started recording her statement in question and answer form. He said, she told him that her husband was going to remarry and so the quarrel took place between them. He said, she told him that in the quarrel, her husband poured kerosene on her person and set her on fire. He said, he had kept original statement in sealed packet and he produced the same 5 before the Court. He said that the statement was recorded in his own hand writing and it also bore endorsement of the Medical Officer, along with thumb impression of the patient. The dying declaration thus recorded was marked Ex. 34. 11 Prosecution witness No.11 was the Investigation officer P.S.I. Sonawane. He said that on 15/12/1993 he received information about Rajani’s admission at Savada hospital in burnt condition. He said, he went there in the noon time and obtained opinion of the Medical Officer about patient’s condition and thereafter recorded her statement. He said, even Medical Officer was present at that time. He then narrated as to what the patient had told him. He said, the patient informed him that she had live in relationship with the appellant Anil since last four years and that on 14/12/1993, at about 6.00 p. m. he had come to her house and had informed her that he was going to marry with a girl from Ujjain. He said, the patient told him that there upon a quarrel took place between them on that count, and in the quarrel, she caught the appellant’s shirt and the appellant said her that he would set her on fire and then poured kerosene on her person and set her on fire with match stick etc.. He said, after recording such statement of the patient, he obtained her thumb impression on it and also the endorsement of the Medical Officer. He used this statement of the patient as the first information report (Ex. 37). He also added that on next day i.e. on 16/12/1993 he arrested the appellant and seized his cloths under panchanama. He said, he received a copy of dying declaration but he said, victim died on 23/12/1993. 12 The learned judge held that the F.I.R. which the prosecution witness No.11 had recorded on the basis of the dying declaration of deceased Rajani, could only be a corroborative piece of evidence, if not a substantive one. However, he held that the dying 6 declaration recorded by the prosecution witness No. 10 of deceased Rajani was a substantive evidence. He held that the statement was recorded properly and since both these statements corroborated each other in material particulars, he thought it fit to use these two dying declarations, for holding that the appellant had caused homicidal death of the deceased. 13 The learned judge instead of convicting the appellant under Section 302 of Indian Penal Code, held that he was entitled to benefit of exception (1) to Section 300 of Indian Penal Code and further held that the appellant was deprived of the power of self control by grave and sudden provocation at the time of the incident. Since this part of the judgment is not under challenge, I avoid making comments on it. 14 The question that arose for my consideration is whether the learned judge had erred in placing reliance on the dying declarations which are the sole circumstance against the appellant. The learned judge while appreciating the circumstances in which the F.I.R. was recorded, opined that in view of the details mentioned in F.I.R., there was possibility that the police officer elicited details in respect of the incident from the neighbours and relatives. He also opined that since the F.I.R. is not recorded in the question and answer form, a doubt can be raised about its genuineness. None the less, the learned judge rightly held that despite of these circumstances, the genuineness of this document, can not be doubted and it can not be discarded. He thus thought it fit to use it as the F.I.R. and used it for corroboration. This conservative approach of the learned judge of the trial Court towards the dying declaration cum F.I.R. is quite reasonable and can not be found to be incorrect. The learned judge then examined the genuineness of the dying declaration (Ex. 34) and held 7 that all necessary procedural requirements for recording a dying declaration are complied with by the prosecution witness No.10. He held that the statement looks voluntary, truthful and genuine and that there were no material discrepancies between the two statements. He rightly held that both the dying declarations are almost similar in all material particulars. 15 The learned advocate appearing for the appellant asserted that these dying declarations should have been discarded firstly because the other prosecution witnesses namely prosecution witnesses No.3, 4 , 5 and 6 specifically stated that deceased Rajani told them that she had attempted to commit suicide by setting herself on fire. He asserted that this probably was the first statement made by deceased Rajani to these witnesses, in respect of the circumstances in which she had sustained the burn injuries. I am afraid, this argument can not be accepted because all these witnesses had resiled from their previous statements which they had made to the police. For the first time, they deposed before the Court that deceased Rajani had told them that she had set herself on fire. They had no earlier occasion to state so to any authority. I think the entire evidence of these hostile witnesses is required to be discarded altogether. 16 The learned advocate appearing for the appellant then asserted that the entire prosecution case is now based on the dying declaration and is untrustworthy. He said that if this was a case of an assault that too a murderous assault on a helpless woman, which was left in burnt condition by her assailant, at least her parents as their first reaction, should have approached the police with a complaint against the appellant. He pointed out that admittedly the prosecution witness No.6 the father of the deceased, made no complaint to the police even 8 if he found that her daughter was lying on a bed in burnt condition, having suffered almost 75% of burns. His initial reaction was only to provide her medical help and he did provide such medical help as if his daughter was responsible for the mishap. This argument looks attractive but has to be discarded. The prosecution witness No. 8 -the father of the deceased- in fact is a very callous person. He was not keen even to provide necessary medical help to the deceased. He said, he then referred her to a local medical practitioner and thereafter he practically did nothing during the entire night. He left his daughter in helpless condition. It is only at about 12.00 noon on the next day when the deceased was unable to tolerate the agony and pains of the burns, it seems he reluctantly shifted her to the Municipal hospital at Savada. This witness is so indurate that he not only turned hostile to the prosecution case but stubbornly stated on oath that he had no occasion to speak to his daughter deceased Rajani. The learned judge of the lower Court rightly observed that Rajani certainly was a liability to this witness. So, these observations would certainly meet arguments of learned advocate appearing for the appellant that as to why this witness had failed to report the incident to the police. 17 The reliability of uncorroborated dying declarations is probably for the first time discussed by the Supreme Court in the case of Khushalrao V. State of Bombay, reported in AIR 1958 Supreme Court page 22. The Supreme Court laid down following propositions of law relating to the test of reliability of dying declaration : (1) That it cannot be laid own as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; 9 (2) That each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) That it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other piece of evidence. (4) That a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) That a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character; and (6) That in order to test the reliability of a dying declaration; the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. The Supreme Court in the case Paniben V. State of Gujrat reported 10 in AIR 1992 SC 1817 summed up the principles of dying declaration with the following observations. "Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on- guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear, opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under: "(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration (Munnu Raja V. State of M.P. 1976 (3) SCC 104; (AIR 1976 SC 2199) : 1976 Cri L J 1718); (ii) If the-Court is satisfied that the dying declaration "is true and voluntary "it can base conviction on it; without corroboration. (State of U.P. v. Ram Sagar Yadav (1985 (1) SCC 552 and 11 Ramawati Devi V. State of Bihar (1983) 1 SCC 211); : (AIR 1983 SC 164 : 1983 Cri L J 221); (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state of make the declaration (K. Ramachandra Reddy Vs. Public Prosecutors 1976 (3} SCC 618); (AIR 1976 SC 1994 : 1976 Cri LJ 1548); (iv)' Where dying declaration is suspicious it should not be acted acted without corroborative evidence (Rasheed Beg v. State of M.P.(1974(4) SCC 264); (AIR 1974 SC 332 : 1974 Cri LJ 361); (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh V. State of M.P. 1981 (Supp) SCC 25); : (AIR 1982 SC 1021 : 1982 Cri LJ 986); (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction (Ram Manorath Vs. State of U.P.(1981 (2) SCC 654); (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra Vs. Krisnnai Tiurti Laxmipati Naidu, 1980 (Supp) SCC 455) (AIR 1981 SC 617 : 1981 Cri L J 9); (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth, Surajdeo Oza vs. State of Bihar (1980 12 Supp. SCC 769); (AIR 1979 SC 1505 : 1979 Cri L J 1122); (ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram Vs. State of M.P. 1988 Supp. SCC 152); : (AIR 1988 SC 912 : 1988 Cri L J 936); (x) Where the prosecution version differs from the version as given in the dying declaration, the-said declaration cannot be acted upon. (State of U.P. V. Madan Mohan (1989) 3 SCC 390) (AIR 1989 SC 1519 : 1989 Cri L J 1485)". 18. In view of these principles, the argument of the learned advocate appearing for the appellant that the Court can not convict the appellant merely on the basis of the dying declaration without there being the corroboration is not acceptable. The learned advocate appearing for the appellant then placed reliance on the judgment of Supreme Court in case of Paparambaka Rossamma and others V. State of Andhra Pradesh reported in AIR 1999 Supreme Court 3455. In this case, the Medical Officer at the time of recording of the dying declaration certified that “the patient is conscious while recording the statement”. The Supreme Court held that such a certificate was not sufficient to hold that the patient was conscious and was in fit mental condition to make the voluntary disclosure of the incident. Taking clue of these observations, the learned advocate appearing for the appellant pointed out that though there were two Medical Officers who, not only attended deceased Rajani while she 13 was in hospital but even made endorsement on the two dying declarations about Rajani’s condition, are not examined as prosecution witnesses. He said, this failure on the part of the prosecution is fatal. However, he did not show me any precedent which requires the prosecution to examine the Medical Officer who made endorsement, in respect of the victim’s condition, while recording the dying declaration. In this case, both the prosecution witnesses No.10 and 11 quite unequivocally stated that they first obtained opinion of the Medical Officers attending the patient before embarking on recording of the dying declaration. Both of them stated that they themselves verified the condition of the deceased as to whether she was able to make voluntarily disclosure of the incident. In case of the first dying declaration, the prosecution witness No. 11 P.S.I. Sonawane had obtained the separate certificate from the Medical Officer and he even obtained an endorsement of the Medical Officer on the F.I.R.. 19 The prosecution witness No. 10 too obtained necessary endorsement on the dying declaration from the Medical Officer who opined with following endorsement “Patient fit for giving statement”. There is nothing on record to disbelieve these two witnesses when they stated that they had talk with the Medical Officers about the fitness of the patient and her mental condition to make statement etc.. So, even though the prosecution has not examined the two Medical Officers in support of its case, it would not prove detrimental to its case. 20 The last circumstances that would clinch the case of the prosecution is the fact that the clothes of the appellant were found stained with kerosene. As said above, within two days from the incident, the appellant was arrested and his cloths were seized. They 14 were found stained with kerosene. This fact proves that the appellant was present when the incident took place and had ample contact with the kerosene which was sprinkled on the clothes of the deceased. The appellant had an opportunity to explain as to how his cloths got stained with kerosene at least when his statement under Section 313 of Cr.P.C. was recorded but even at that time, he offered no explanation and simply stated that he did not know how his clothes were found stained with kerosene. In my view, the appeal should therefore, fail. ORDER The appeal stands dismissed. Issue arrest warrant against the appellant. [A.V. NIRGUDE, J.] ts k/16.11.10.criapl1.99/ok