1 cr-apeal-926-04 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. APPEAL NO. 926 OF 2004 Shalini Popat Yadav ] Age 30 years, presently undergoing ] sentence at the Yerawada Jail, Pune ]..Appellant [Ori. Accused No.1] Vs. The State of Maharashtra ] Through the Office of ] The Public Prosecutor ]..Respondent [Ori. Complainant] .... Mrs. Indrayani M. Koparkar Advocate for Appellant Mr. J.P.Yagnik A.P.P. for the State .... CORAM : P.V.HARDAS AND M.N.GILANI, JJ. DATED : APRIL 29, 2011 ORAL JUDGMENT [PER P.V.HARDAS, J.]: 1 The appellant who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life by the 1st Ad-hoc Additional Sessions Judge, Nasik by judgment dated 29th July, 2002, by this appeal questions the correctness of her conviction and sentence in Sessions Case No. 11 of 2002. 2 cr-apeal-926-04 2 Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. P.W. 10 Dadaji Kapadnis, P.S.I. attached to Nasik Road Police Station in February, 2001, was on duty in the night between 17th and 18th August, 2001. At about 5 to 5.15 a.m. P.S.I. Pagare informed him about the admission of a patient with burn injuries and accordingly P.W. 10 P.S.I. Kapadnis proceeded to the hospital i.e. Bytco hospital. After reaching the Bytco hospital he verified from the Medical Officer on duty if the patient was conscious and in a position to give his statement. After that Medical Officer endorsed that the patient was conscious and was in a fit condition to give his statement, P.W. 10 P.S.I. Kapadnis recorded the statement of injured Santosh at Exh. 14. After recording the statement, P.W. 10 P.S.I. Kapadnis read over the statement to Santosh and after Santosh admitted the correctness of the statement, P.W. 10 Kapadnis obtained the signature of injured on the said statement. The Medical Officer thereafter made an endorsement on the said statement that the injured was conscious while recording of the statement. P.W. 10 P.S.I. Kapadnis thereafter returned to the police station and on the basis of the statement at Exh. 14 registered an offence vide Crime No. 276 of 2001 under Section 307 read with Section 34 of the Indian Penal Code. 3 cr-apeal-926-04 After registration of the offence, a request at Exh. 19 was made to the Special Judicial Magistrate P.W.2 Bhalchandra Vaidya for recording the dying declaration of injured Santosh. Accordingly P.W. 10 P.S.I. Kapadnis accompanied P.W.2 Bhalchandra Vaidya at Exh. 15. P.W. 10 P.S.I. Kapadnis then proceeded to the scene of the offence and recorded the scene of offence panchnama at Exh. 31. From the scene of the offence a blanket, quilt and bed covers etc. which were found burnt and piece of towel and partly burnt rope, came to be seized vide scene of the offence panchnama at Exh. 31. Seized articles were thereafter forwarded to the Chemical Analyser for examination. While drawing of the scene of the offence panchnama, P.W. 3 Umesh Bhai a photographer had been called who had taken photographs of the scene of the offence. It appears that subsequently another dying declaration came to be recorded by P.W. 2 Bhalchandra Vaidya at Exh. 16. The sketch map of the scene of the offence came to be drawn and on completion of the investigation a charge sheet against the present appellant and another accused came to be filed. 3 On committal of the case to Court of Sessions, charge against the appellant and another accused came to be framed vide Exh. 8 for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code. Prosecution in support of its case examined ten witnesses and after appreciating the evidence the trial Court acquitted original 4 cr-apeal-926-04 accused no.2 Shashikant Pawar while convicting the present appellant. 4 The entire prosecution case revolves around the dying declarations. It also appears that when the injured Santosh was admitted in the hospital, he had made a disclosure to the Medical Officer which disclosure is recorded in the medical papers at Exh. 17. Prosecution has also examined P.W. 4 Chaya sister of deceased Santosh and P.W. 8 wife of deceased Santosh. 5 P.W. 4 Chaya sister of deceased Santosh states that Santosh was her brother who was residing with accused no.1 Shalini for about one and half years prior to the incident. Santosh was married to P.W. 8 Kamal and accused no. 1 was the mistress of Santosh. It appears that the accused no.1 i.e. present appellant had quarreled with wife of the deceased and had assaulted her also. Two days prior to the incident, Kamal was residing with the brother of the deceased by name Prakash. Accused no.2 used to frequent the house of Santosh and P.W. 4 Chaya had often phoned the accused no.2 in the house of Santosh. In respect of the incident, P.W. 4 Chaya states that on the date of the incident, she was present in her house and in the early morning at about 3.45 a.m. one neighbour had informed her that she had noticed smoke coming out from the house of deceased Santosh. P.W. 4 Chaya therefore went to the 5 cr-apeal-926-04 house of Santosh. According to her it was dark at that time and she had called out in the name of the appellant but there was no response. However, Santosh had given a response to her call and when she entered the house, she noticed that all the electric connections were cut and there was darkness in the house. She obtained a flash light from one old man and in the illumination of the flash light she entered the house and noticed Santosh sitting on the ground with extensive burn injuries. She accordingly asked Santosh as to how he had received burn injuries and he had told Chaya that while he was sleeping, the two accused had tied his hands and legs by means of a coir rope and had poured kerosene on his person and then had set him ablaze. Santosh thereafter asked Chaya to bring his parents. Chaya accordingly went to the house of her parents who arranged for a tempo and in that tempo Santosh was carried to the Bytco hospital where he was treated in the hospital for five days and ultimately succumbed to his injuries. Omission has been duly proved that she had not stated in her previous statement about Santosh informing her that his hands and legs had been tied by the two accused. She has admitted that no complaint was lodged in respect of the appellant assaulting Kamal. She has further admitted that place where Santosh had sustained burn injuries was the den of illicit liquor. 6 cr-apeal-926-04 6 P.W. 8 Kamal states that she was married to Santosh. She states that appellant was residing with Santosh as his mistress. She states that the appellant had once assaulted her and thereafter she began to reside with her parents. She states that after coming to Nasik, she was residing with her parents in law. On the day of the incident, she was present in the house of her father in law and at about 4 a.m. her sister in law Chaya had come to her father in laws house and had informed her about the incident. Thereafter they proceeded to the house of Santosh where P.W. 8 Kamal questioned him as to how he had received the burn injuries, Santosh informed her that the accused had tied his hands and legs and had poured kerosene and had set him ablaze. Thereafter Santosh was shifted to hospital in a tempo. In cross examination she has admitted that she had not lodged any complaint about the appellant assaulting her. 7 P.W. 1 Dr. Pitambar Jadhav who had examined Santosh, states that he had questioned Santosh and Santosh had informed him that both the accused had tied him to a cot and after pouring kerosene on his person, had set him ablaze. The history however, which is recorded by P.W. 1 Dr. Jadhav and which is reflected in Exh. 17 reads as under: “H/o homicidal burns, history told by the patient himself, he 7 cr-apeal-926-04 was tied by a lady keep on a cot, she poured kerosene and burnt him. Some portion is not legible.” However, it is clear that in the history which was narrated by Santosh he had stated that appellant had tied him to a cot and had poured kerosene and set him ablaze. This history is in direct conflict with the alleged statements made by Santosh to both P.W. 4 Chaya and P.W. 8 Kamal. 8 P.W. 2 Bhalchandra Vaidya who recorded the two dying declarations at Exhs. 15 and 16, does not prove the contents of the said dying declarations. However in the dying declaration at Exh. 15 Santosh states that on the day of the incident he was residing in the house of the appellant where both the accused were also residing. In the night the accused held him and accused no.2 poured kerosene on him and set him ablaze. All the other persons were sleeping in the house and on hearing his cries his parents came there and took him to the hospital. Another dying declaration came to be recorded which is at Exh. 16 in which Santosh states that people had come to meet him. He was disturbed and could not state properly. In the subsequent dying declaration Exh. 16 he states that he had gone to his in laws house and the appellant had telephoned him and had quarreled with him as he had gone to meet his wife. He states that at about 2 to 3 days prior to the incident he was 8 cr-apeal-926-04 residing with the appellant. He states that when he was sleeping both the accused came near him and placed a gag in his mouth and tied his hands and legs with a nylon rope. Accused were accompanied by two more persons whose face he did not see. After he was tied, the two accused poured kerosene on him and both the accused set him ablaze. He was brought to the hospital by his relatives. He states that he had decided to leave the appellant and therefore, both the accused had burnt him. 9 It would thus be seen that there is substantial variance in all the dying declarations. In the dying declaration at Exh. 14 Santosh states that both the accused had tied him to the cot by a wire and thereafter had poured kerosene on him and set him ablaze. He states that he raised cries and thereafter some one opened the door and he rushed outside. Thereafter his sister arrived and then he was shifted to the Bytco hospital. 10 The oral dying declarations made to P.W. 4 Chaya and P.W. 8 Kamal and the statement recorded by P.W. 10 P.S.I. Kapadnis at Exh. 14 and the dying declarations at Exh. 15 and Exh. 16 are in sharp contradiction with each other. Unfortunately neither P.W. 10 Kapadnis nor P.W. 2 Bhalchandra had proved the contents of the dying declarations recorded by them. The disclosure statement made by Santosh to P.W. 1 9 cr-apeal-926-04 Dr. Jadhav which is reflected at Exh. 17 is completely a different dying declaration which only implicates the present appellant. In the light of the aforesaid disclosure recorded by the Medical Officer the trial Court has given benefit of doubt to accused no.2 and has acquitted him. 11 Learned Counsel has invited our attention to the judgment of the Division Bench in `Suresh Arjun Dodorkar Vs. State of Maharashtra 2005 ALL MR (Cri.) 1599' to which one of us P.V.Hardas, J. was a member. The Division Bench at paragraph 9 has held thus: “ A perusal of both the dying declarations reveal that there are inter se variance. In the dying declaration at Exh. 24 Vimal had stated that the appellant, under the influence of liquor, used to beat her as he was of suspicious nature. She states that when she had asked him to take his dinner, the appellant had quarreled with her and, therefore, in anger she had gone to sleep. While she was asleep, the appellant had poured kerosene on her and had set her ablaze. In the dying declaration at Exh. 27 Vimal had stated that in the evening she had sent the daughter of her neighbour for purchasing wheat, but as the said girl had not gone, she had herself gone and purchased wheat. According to her, the appellant, on his return, asked her as to why she had gone for purchasing wheat 10 cr-apeal-926-04 and what was the relationship between Vimal and the shopkeeper. The appellant then went out of the house and returned back at about 7.00 or 7.30 p.m. carrying a small plastic can of kerosene. Vimal has asked her husband to take his dinner but her husband had said that he would not eat anything prepared by her as she was of loose character. On so saying her husband poured kerosene on her and set her ablaze. It would thus be seen that in respect of the incident there is a major variance though there is a common thread in both the dying declarations that it was the appellant who had set her ablaze. 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 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 the 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 11 cr-apeal-926-04 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 Exh. 24 and 27.” 12 Learned Counsel for the appellant has also invited our attention to the judgment of the Supreme Court in `Leela Srinivasa Rao Vs. State of Andhra Pradesh (2004) 9 S.C.C. 713'. The Supreme Court in the said judgment acquitted the accused on the ground that there were inconsistencies in the two dying declarations. 12 cr-apeal-926-04 13 In the present case, we find that there are tremendous inconsistencies in all the dying declarations and therefore, acceptance of any one dying declaration necessarily falsifies the other dying declarations. In such circumstances, the Court cannot pick and choose any particular dying declaration for basing the conviction. In the face of such inconsistent dying declarations, according to us, the appellant is entitled to be given the benefit of doubt. 14 Criminal Appeal is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offence 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. [ M.N.GILANI, J. ] [ P.V.HARDAS, J. ]