{1} Cri. Appeal No.160/2011+1 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.160 OF 2011 WITH CRIMINAL APPEAL NO.161 OF 2011 XXX CRIMINAL APPEAL NO.160 OF 2011 Arun Bhikaram Jadhav APPELLANT Age-26 years, Occ-Agriculture R/o Gosavi Pangri, Tq-Partur Dist-Jalna VERSUS The State of Maharashtra RESPONDENT ....... Mr. Joydeep Chatterji, Advocate for the appellant Mrs.S.D.Shelke, APP for respondent State ....... WITH CRIMINAL APPEAL NO.161 OF 2011 Sunita w/o Arjun Adhe APPELLANT Age-25 years, Occ-Household R/o Ghansawangi, Tq-Ghansawangi Dist-Jalna VERSUS The State of Maharashtra RESPONDENT {2} Cri. Appeal No.160/2011+1 ....... Mr. R.M.Deshmukh, Advocate for the appellant Mrs.S.D.Shelke, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 12 th July 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. Challenge in these appeals is to the conviction of the appellants for an offence punishable u/s 302 r/w 34 of the Indian Penal Code and sentence of imprisonment for life and to pay a fine of Rs.1000/- each with default stipulation of undergoing further RI for one month, awarded by the Additional Sessions Judge-2 Jalna, vide judgment and order dated 23.03.2011, rendered in Sessions Case No.147/2010. As both these appeals question the correctness of the same judgment and order, they are being disposed of by this common judgment. 2. Prosecution case, as unfolded during the trial, may briefly be stated thus- a. On 17.07.2008, Police Inspector (PW-9) Narayan Patil, who was attached to Ghansawangi police station, registered an offence at Crime No.70/2008 u/s 307, 323, 504 r/w 34 of the Indian Penal Code against the appellants on the basis of {3} Cri. Appeal No.160/2011+1 dying declaration (Exhibit-26) of Babita (deceased) recorded on 16.07.2008 by Head Constable Babu Wagh (PW-2). On 16.07.2008 itself, one more dying declaration of Babita (deceased) (Exhibit-23) was recorded by Naib Tahsildar (PW-1) Tulsiram Gaikwad. b. Following to the registration of the crime, PW-9 Police Inspector Patil himself took over the investigation and recorded statements of 2 witnesses on 17.07.2008. Prior to that on 16.07.2008, Police Head Constable, Salunke, had visited the spot and had drawn Spot Panchanama (Exhibit-28). Thereafter, both the appellants came to be arrested. On 19.07.2008 statement of Babita and her parents were recorded by the police. Thereafter statements of some more witnesses were recorded. On 28.07.2008, Babita succumbed to the burn injuries while under treatment. Thereafter, after drawing Inquest Panchanama (Exhibit-29), dead body of Babita was forwarded for postmortem examination to civil Hospital, Jalna. Thereafter, offence punishable u/s 302 of the Indian Penal Code came to be added. Accordingly, supplementary statements of the witnesses were recorded. The seized property was forwarded to the Chemical Analyzer for examination. On completion of the investigation, charge sheet came to be filed against both the appellants before JMFC, Ghansawangi, on 29.09.2008. {4} Cri. Appeal No.160/2011+1 c. On being committal of the case to the Court of Sessions, trial Court framed charge (Exhibit-14) against both the appellants for an offence punishable u/s 302 r/w 34 of the Indian Penal Code. The appellants abjured their guilt and claimed to be tried. Prosecution, in support of its case, examined in all 10 witnesses. As the appellants admitted the Spot Panchanama (Exhibit-28), Inquest Panchanama (Exhibit-29), Postmortem Report (Exhibit-30) and CA report (Exhibit-31), the said documents were exhibited. Defence of the appellants was of total denial. According to appellant Arun, death of Babita was suicidal and not homicidal. On appreciation of the evidence, trial court convicted the appellants as aforestated. 3. Learned counsel for the appellants urged before us that the conviction of both the appellants is based on the dying declarations (Exhibit-23 and Exhibit-26) so also on the oral dying declarations made by the appellant before her parents (PW-4 and PW-7) and PW-8 Shaikh Jumman coupled with the medical evidence i.e. Postmortem Report (Exhibit-30) and expert evidence i.e. CA report (Exhibit-31) as well as the situation at the spot reflected in the Spot Panchanama (Exhibit-28). However, according to the learned counsel for the appellants the recitals of the said documents are contrary to the disclosure statement made by the victim before the Medical Officer (PW-10) Dr. Kulkarni, who had recorded history of the incident, as given by Babita (deceased) at {5} Cri. Appeal No.160/2011+1 the time of admission in the hospital. Per contra, learned APP supported the impugned judgment and urged for dismissal of both the appeals. 4. For better appreciation of the submissions advanced before us by Mr.Chatterjee, and Mr.Deshmukh, learned counsel for both the appellants and Mrs.Shelke, learned APP for respondent State, it may be useful to advert to the evidence of witnesses examined before the trial court. 5. Contents of Inquest Panchanama (Exhibit-29) and Postmortem Report (Exhibit-30), which are admitted by the appellants, disclose that Babita had sustained burn injuries on front as well as back portion of her body. The medical officer, who had performed the postmortem, had noticed that there were injuries on chest, back, both upper exterminities, right and left thigh and there was slough crest at places with foul smelling discharge. Cause of death, according to the medical officer, was due to respiratory shock due to 66% superficial to deep burns. Thus, it is clear that death of Babita caused due to burn injuries and it was an unnatural death. Now the point for our consideration is as to whether the death was suicidal or homicidal and if the death was homicidal, whether the appellants can be held responsible for the same in view of the evidence on record. 6. It transpired from the evidence of PW-1 Tulshiram that {6} Cri. Appeal No.160/2011+1 he, after it was verified by PW-10 Dr.Kulkarni that Babita (deceased) was in a fit condition to give statement, had recorded her statement (Exhibit-23) during the period 4.45 to 5.00 p.m on 16.07.2008. He states that Babita (deceased) disclosed him that she got married with appellant Arun prior to 3 years of the incident, but she could not conceive. Her husband, appellant Arun, had illicit relations with appellant Sunita. Appellant Sunita, prior to the incident, had came to her house and quarreled with her. On 15.07.2008, around 12.00 midnight her husband, appellant Arun, came home in drunken condition assaulted her. Thereafter, appellant Sunita and appellant Arun, raised quarrel with Babita (deceased) and appellant Sunita, poured kerosene on the person of Babita (deceased) and had set her ablaze in presence of her husband. She ran outside the house and extinguished the fire herself. Thereafter, her husband applied ink on her person and got her admitted in a hospital. According to PW-1 Tulshiram, after recording of the statement of Babita (deceased) he had obtained her thumb impression on the same. PW-1 admits in his cross examination that it was mentioned in the letter of request (Exhibit-24) that Babita (deceased) herself set ablaze during a quarrel and her husband, appellant Arun had also sustained burn injuries. He further admits that, though requested, he did not record statement of appellant Arun. He further admits in his cross examination that Babita did not disclose full name and address of appellant Sunita. It appears that evidence of this witness is not shaken even in his cross examination. {7} Cri. Appeal No.160/2011+1 7. It transpired from the evidence of PW-2 Babu that he, after it was certified by the on duty medical officer that Babita was in a fit condition to give statement, had recorded statement of Babita (Exhibit-26) on 16.07.2008 at 5.00 p.m. He states that Babita disclosed him that on 15.07.2008, her husband came home at midnight and, on her inquiry as to where he was, informed that he was with appellant Sunita and on that count there was quarrel between them. Thereafter, appellant Arun assaulted her with stick at that time appellant Sunita came there and she poured kerosene on the person of Babita and set her ablaze by igniting a match stick. Babita disclosed to PW-2 that she was set ablaze by appellants Arun and Sunita and mother of Sunita. He has admitted in the cross examination that he also recorded statement of Arun, who was also admitted in the same hospital on account of sustaining burn injuries. He admits that Babita did not disclose full name and address of appellant Sunita. Nothing of substance has been elicited in his cross examination to disbelieve his testimony. 8. PW-10, Dr.Milind Kulkarni, states that on 16.07.2008 he had examined Babita (deceased) and certified that she was in a fit condition to give statement before her statement (Exhibit-23) and (Exhibit-26) were recorded by PW-1 and PW-2, respectively. However, he has given a fatal admission in the cross examination that at the time of admission in the hospital, Babita had given {8} Cri. Appeal No.160/2011+1 history of setting herself ablaze, which he had recorded in the admission papers. Through him, defence got proved the medical admission papers (Exhibit-56). 9. It transpired from the evidence of Motiram PW-4, father of deceased Babita, that prior to 4 months of the incident Babita was assaulted by the appellant Arun on account of his illicit relations with appellant Sunita and she was admitted in Krishna Hospital at Jalna. He further states that after taking discharge from the hospital, he had taken Babita to her paternal house. However, on the assurance given by the maternal uncle of appellant Arun that Arun would give up relations with appellant Sunita and would not ill-treat Babita, she was sent back to her matrimonial house. Thereafter also Babita had informed him on phone about assault by appellant Arun and his continuation of relations with appellant Sunita. In respect of the incident, he states that after receipt of message that Babita had received burn injuries, he had been to General Hospital, Jalna where Babita disclosed him that initially appellant Arun assaulted her with fists blows and a stick till she became unconscious. Thereafter, appellant Sunita came there and poured kerosene on the person of Babita and set her ablaze. Babita had also disclosed him that one Mauli had witnessed appellant Sunita running from the spot. Thereafter, she was admitted by some persons from Ghansawangi to hospital, where she expired after 13 days of the incident. He has further stated that initially, appellant Arun and deceased Babita {9} Cri. Appeal No.160/2011+1 were residing in the house of appellant Sunita, however, as appellant Sunita beat deceased Babita, they had arranged for shifting of appellant Arun and deceased Babita in another house. He states that he was along with the deceased in the Hospital at Jalna till her demise. After reaching to the Hospital, he had a talk with Babita for about half an hour when the doctor and the police personnel were present there. His testimony is not shattered even in his cross examination. 10. PW-7 Jamunabai, mother of the deceased has corroborated the evidence of PW-4 Motiram and she supports his testimony in material particulars. Additionally she states that Babita had disclosed to her that after appellant Sunita had set her ablaze, on hearing her cries neighbour Jumman had came there and on seeing him appellant Sunita had fled from the spot and thereafter said Jumman and one shop keeper, by name, Mauli, shifted her to the hospital. She also remained with the deceased till her demise, in the hospital. She states that the deceased had talked with her in Banjara language and she narrated the same to police in Marathi language. Police had recorded her statement after 4 days. Certain omissions are proved in her cross examination that she had not disclosed in her police statement that 6 months prior to the incident Babita had informed her on phone about the illicit relations of appellant Arun and appellant Sunita and that appellant Arun had told Babita that he would bring appellant Sunita in his home. {10} Cri. Appeal No.160/2011+1 11. PW-8 Shaikh Jumman, neighbour, states that appellant Arun was residing in his house and appellant Arun had illicit relations with appellant Sunita. He states about the incident that on 15.07.2008, he was called by his neighbours to the house of the appellant Arun and they noticed that appellant Arun and deceased Babita had sustained burn injuries and smell of kerosene was emitting from the room. He also noticed one glass and one kerosene Can so also one partially burnt gown lying in the said room. He had shifted Babita in Government Hospital at Ghansawangi and from there to Government Hospital Ambad at that time one person by name Mauli also accompanied them in an ambulance. In the ambulance, when Babita was being taken to Jalna, on his inquiry, she had disclosed him what she had disclosed to her parents about initial quarrel with appellant Arun and appellant Sunita setting her ablaze. Statement of PW-8 Jumman was recorded by the police after 2 days of the incident. He states that police did not meet him at Ghansawangi or Ambad but met him at Jalna. He has categorically admitted that he had not disclosed the incident either to the doctor or to the police. Babita talked with him in Hindi language while his statement was recorded by the police in Marathi. 12. Learned counsel for the appellant draw our attention to Exhibit-56, Medical admission papers, which indicate that Babita was admitted in the hospital on 16.07.2008 at 4.15 am by {11} Cri. Appeal No.160/2011+1 one Someshwar Avadhal, who is not examined before the trial court. At the time of admission in the hospital, the patient herself gave history of self burning by pouring kerosene at 12.15 a.m. Learned counsel for the appellants contended that the alleged incident occurred at midnight, thereafter, Babita was taken to hospitals at Ghansawangi, Ambad and ultimately at Jalna, by her neighbours. According to learned counsel for the appellants, admittedly, at that time appellant Arun, who had also sustained burn injuries, was not with Babita. It is further urged that the medial officer, PW-10 has categorically admitted that the history was recorded in the medical admission papers (Exhibit-56) as disclosed by the injured herself. Learned counsel for the appellants draw our attention to the dying declarations (Exhibit-23 and Exhibit-26), recorded on 16.07.2008. According to learned counsel for the appellants, both the dying declarations are recorded after 12 hours, after the patient was admitted in the hospital and after she had given the history of the incident. Though it is urged that there is variance in the contents of all the dying declarations in respect of prelude to the incident, sequence of events before the incident and after the incident, yet according to us, such variance would not affect the material aspects of the dying declarations. Learned counsel for the appellants urged that the dying declarations should not have been relied upon by the trial court and further urged to exclude the same from consideration. Learned counsel for the appellants urged that the contents of the dying declarations are not supported by the recitals of the Inquest {12} Cri. Appeal No.160/2011+1 Panchanama and Postmortem report. Hence, it is urged to allow the appeals and acquit the appellants. Per contra, learned APP supported the findings recorded by the trial court and urged for dismissal of both the appeals. 13. As the conviction of both the appellants is based on dying declarations, the dying declarations have to pass the the test of creditability. Admittedly, Exhibit-56, Medical Admission Papers, are not brought on record by the prosecution but were brought on record by the defence in cross examination of PW-10 Medical Officer. 14. At this juncture, the observations of the Division Bench of this Court, in the matter “Janabai Ranu Patole V/s The State of Maharashtra” 1997 ALL MR (Cri)1157 may usefully be referred wherein it is observed that the statement made by the victim forming a part of the transaction of circumstances leading to his death, recorded in the medical case papers, would be admissible as a dying declaration u/s 32 of the Evidence Act. It was held in the said judgment that the dying declaration recorded by the doctor in the medical case papers is alone sufficient to convict the accused persons. 15. We may also usefully refer the observations of the Division Bench of this Court, in the matter of “Prabhakar Wamanrao Salve V/s State Of Maharashtra” 2006 ALL MR (Cri) {13} Cri. Appeal No.160/2011+1 1274, to which one of us, (P.V.Hardas, J.) was a member. It is held in the said judgment thus- “According to us, suppression of a vital piece of evidence casts a serious doubt about the genuineness and truthfulness of the dying declarations at Exhibit-23 and Exhibit-34. It is not the duty of the Investigating Officer to bolster the prosecution case by suppressing the evidence but he should present before the Court an unalloyed truth. Dying declaration is a document or indictment which is made by the deceased from the grave. The dying declaration at Exhibit-23 and Exh.34 indict the accused as a perpetrator of the crime having set Neeta ablaze after pouring kerosene on her. Before the statement can be accepted and made the foundation or the basis for conviction, it is incumbent on the prosecution to establish that there are not clouds of suspicion hovering over the recording of the dying declaration. It is equally incumbent on the prosecution to establish that the dying declarations are voluntary and truthful statements made by the declarent before they can be accepted and acted upon by the Court for convicting the accused. The Supreme Court in Laxman Vs. State of Maharashtra, AIR 2002 SC 2973 has held as under- The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many {14} Cri. Appeal No.160/2011+1 circumstances which may effect either truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. The Court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or promoting or a product of imagination.” 16. Applying this test, according to us, dying declarations at Exhibit-23 and Exhibit-26 do not cross the hurdle and hence we do not find that these dying declarations inspire confidence of the Court. 17. Reference may also usefully be made to the judgment of the Division Bench of this Court, in “Suresh s/o Arjun Dodorkar (Sonar) V/s State of Maharashtra” 2005 ALL MR (Cri) 1599 to which one of us (P.V.Hardas, J.) was a member, which is further referred in the judgment of the Division Bench of this Court in the matter of “Kamalbai Gorakh Koli & Ors V/s State of Maharashtra” 2011 ALL MR (Cri) 1406 to which both of us, are members, wherein it is observed that – in cases resting on multiple dying declarations the Courts accept consistency in respect of crux of the facts leading to the incident. When two dying declarations are contrary to each other acceptance of one renders the other as false. Mere repetition of allegations against one of the accused {15} Cri. Appeal No.160/2011+1 would not render both the dying declarations acceptable. 18. As pointed out by us above, when the victim made disclosure to PW-10 Dr.Kulkarni, at the the time of her admission in the hospital, she gave history of self burning by pouring kerosene. Admittedly, no attempts are made by the prosecution to cross examine or re-examine this witness. Apart from it, as stated earlier, at the time of admission of the victim in the hospital at Jalna, her husband was not with her, though he was admitted in the same hospital. It is also not the case of the prosecution that PW-8 Jumman had given the history to the Medical Officer. Additionally, the prosecution has not examined the shopkeeper, who accompanied the deceased to the Hospital along with PW-8 Jumman. PW-10 Dr.Kulkarni has categorically admitted that he has recorded the history of receiving burn injuries accidentally in the medical admission papers (Exhibit-56), as told by the victim herself. 19. It requires to be considered that had appellant Sunita poured kerosene on the deceased and set her ablaze, then the victim had no reason to shield her while giving history of receiving burns to the medical officer though it could be understand that in a ray of hope of surviving, she might not have disclosed name of her husband. It has came in the evidence that both the dying declarations, Exhibit-23 and Exhibit-26 are recorded after a gap of 12 hours and that too after arrival of the parents of the deceased {16} Cri. Appeal No.160/2011+1 and hence possibility of tutoring cannot be ruled out. Though PW-8 Jumman states about oral dying declaration, yet he had not disclosed the same to anybody till his statement came to be recorded by the police on 17th July. In the premise, and considering the discrepancy about the disclosure made by the victim to the Medical Officer and in the dying declarations, the conviction cannot be based on the dying declarations, oral as well as written. 20. Even otherwise, as per the dying declarations, appellant Sunita poured kerosene from a can in a glass and threw the same on Babita and then set her ablaze and in such circumstances, only one portion, either back or front, should have been burnt, however, Inquest Panchanama (Exhibit-29) so also Postmortem report (Exhibit-30) indicate that burn injuries were found on the person of Babita on front as well as on back portion. According to us, unless kerosene is poured from the height of shoulder level, the traces of kerosene would not have appeared on both sides of the body. Thus, the Inquest Panchanama as well as Post mortem report falsifies the disclosure made in the oral as well as written dying declarations. 21. Considering the inconsistency in the multiple dying declarations, the same cannot be relied upon. If the dying declarations are left out of the consideration, then there is nothing on record to connect the appellants with the offence punishable u/s 302 r/w 34 of the Indian Penal Code. In the premise, the {17} Cri. Appeal No.160/2011+1 conviction and sentence of the appellants requires to be quash and set aside. 22. Criminal Appeal No.160/2011 is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offences with which he was charged and convicted. Fine, if any, paid by the appellant, be refunded to him. Since the appellant is in jail, he be released forthwith, if not wanted in any other case. 23. Criminal appeal No.161/2011 is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offences with which she was charged and convicted. Fine, if any, paid by the appellant, be refunded to her. Since the appellant is in jail, she be released forthwith, if not wanted in any other case. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapel160-11