1 Cri.Appeal No.66 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 66 OF 2011 1. Dadasaheb s/o Babasaheb Pawar, Age 29 years, Occu.Agril., R/o Tembhi, Tq. Vaijapur, Dist. Aurangabad 2. Kadubai w/o Babasaheb Pawar, Age : 60 years, Occu. Household, R/o Tembhi, Tq. Vaijapur, Dist. Aurangabad ..APPELLANTS VERSUS The State of Maharashtra, Through Police Station, Veergaon, Tq. Vaijapur, Dist. Aurangabad ..RESPONDENT Mrs Madhaveshwari Thube - Mhase, Advocate for the appellants; Mr S.K. Tambe, Addl. Public Prosecutor for the respondent CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 8th August 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) The appellants, who stand convicted for an offence punishable under section 302 read with sec. 34 of the Indian Penal Code 2 Cri.Appeal No.66 of 2011 and sentenced to imprisonment for life and to each pay fine of Rs.1,000/-, in default of which to undergo further R.I. for six months, by the Additional Sessions Judge-3, Aurangabad in Sessions Case No.247 of 2009, by this appeal question the correctness of their conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus :- P.W.3 Rashid Khan, an A.S.I. who was attached to the Jinsi police station and on 18.4.2009 was posted at the Medical Police Chowky at the Ghati Hospital, Aurangabad, was called by the Chief Medical Officer and was informed about the admission of Sangita with burns in the Hospital. Accordingly, at about 11.00 p.m. Sangita informed the Chief Medical Officer in the presence of P.W.3 Rashid Khan that as her mother-in-law (appellant no.2) had quarrelled with her, Sangita in a fit of anger had set herself ablaze. Injured Sangita was admitted in Ward No. 22/23 and P.W.3 A.S.I. Rashid Khan accordingly informed about the M.L.C. on telephone to Veergaon police station. Veergaon police station requested P.W.3 Rashid Khan to record the statement of Sangita. Accordingly, P.W.3 Rashid Khan submitted a written requisition to the Medical Officer of Ward No.22/23 to inform him if Sangita was in a fit condition to give her statement. The in-charge Doctor informed P.W.3 Rashid Khan that Sangita was in a position to give her statement. P.W.3 3 Cri.Appeal No.66 of 2011 Rashid Khan thereafter proceeded to Ward No.22/23 and inquired from the injured patient her name. He ascertained for himself that she was in a condition to talk. Accordingly, Sangita disclosed to him that on 18.4.2009, at about 7.30 p.m., there was a quarrel between Sangita and her mother-in-law Kadubai. According to Sangita, her mother-in-law Kadubai told Sangita to permit the husband of Sangita to drink liquor and on saying so, mother-in-law of Sangita poured kerosene on her and husband of Sangita set her ablaze. P.W.3 A.S.I. Rashid Khan accordingly recorded the statement of Sangita and after reading over the statement to Sangita obtained her left hand thumb impression. The said statement of Sangita is at Exh.42. A communication was addressed to the Special Judicial Magistrate for recording the dying declaration of Sangita at Exh. 43. Statement of Sangita at Exh.42 was handed over to the Police Officer of the concerned police station. P.W.5 A.P.I. Rafiq Shaikh, who was the A.P.I. of the concerned police station, was entrusted with the investigation of the said crime upon an offence being registered on the basis of statement of Sangita at Exh.42. He took charge of the inquest, provisional post mortem report and accordingly arrested appellant no.1 Dadasaheb on 20.4.2009. He drew the scene of the offence panchnama at Exh.33. The inquest panchnama of Sangita, who had succumbed to her injuries, is at Exh.34. After the arrest of the accused, the clothes on his person came to be seized and the seized articles were forwarded to the Chemical Analyser under requisition at Exh.49. The report of the Chemical Analyser is at Exh.50. 4 Cri.Appeal No.66 of 2011 3. Post mortem on the dead body of deceased Sangita was performed by P.W.1 Dr. Mandar Sane. P.W.1 Dr. Sane noticed that Sangita had sustained 100% burns and there was kerosene like smell. He opined that cause of death was shock due to burns. He further opined that the injuries sustained by Sangita were ante mortem injuries. Further to the completion of investigation a charge-sheet against the appellants came to be submitted. 4. On committal of the case to Court of Sessions, Trial Court vide Exh.7 framed charge against the appellants for offence punishable under section 498-A read with sec. 34 of the Indian Penal Code and under section 302 read with sec. 34 of the Indian Penal Code. The appellants denied their guilt and claimed to be tried. Prosecution in support of its case examined five witnesses, while the accused in their defence examined two witnesses. The Trial Court, upon consideration of the evidence acquitted the respondents for offence punishable under section 498-A of the Indian Penal Code but convicted them for an offence punishable under section 302 read with sec. 34 of the Indian Penal Code. 5. In order to effectively deal with the submissions advanced before us by Smt. Madhaveshwari Thube-Mhase, learned Counsel for the appellants and learned Addl. Public Prosecutor for respondent - State, it would be useful to refer to the evidence of the prosecution witnesses. 5 Cri.Appeal No.66 of 2011 6. As pointed out by us above, P.W.3 A.S.I. Rashid Khan recorded the statement of Sangita at Exh.42. Rashid Khan also states that in his presence Sangita had disclosed to the Chief Medical Officer that in a fit of rage she had set herself ablaze on account of quarrel with her mother- in-law. P.W.3 Rashid Khan in cross-examination states that when Sangita was brought to the Hospital she was talking fluently. He has also admitted that the accused had not asked Sangita in his presence of what Sangita should state. He states that the accused had not talked to Sangita at all in his presence. He has admitted that he does not know if the relatives of Sangita came to the Hospital subsequently. 7. P.W.4 Dr. Nitin Kotecha, who had endorsed on the dying declaration at Exh.42 states that he had received a communication at Exh.41 from A.S.I. Shri Shaikh soliciting his opinion if Sangita was in a fit condition to give her statement. He had accordingly endorsed on the communication at Exh.41 that Sangita was in a fit condition to give her statement. He states that he was present during the recording of the statement. On his examination he had found that Sangita was conscious and oriented and had accordingly made the endorsement on the said statement. In cross-examination he has admitted that on the next day at 5.15 a.m. Sangita was unconscious and was not in a fit condition to give her statement. He has further admitted that no sedatives had been administered to Sangita and generally sedatives are administered only 6 Cri.Appeal No.66 of 2011 in the case where the patient is violent. 8. Mrs Thube, learned Counsel for the appellants has invited our attention to Exh.43, a communication addressed to the Special Judicial Magistrate. In the said communication at Exh.43 it is clearly stated that Sangita had attempted to commit suicide. In the M.L.C. at Exh.44 also there is a mention that on account of quarrel with her mother-in-law, Sangita in a fit of rage, had set herself ablaze. The learned Counsel for the appellants, therefore, has urged before us that there is nothing on record which would indicate even remotely that Sangita had stated before the Chief Medical Officer regarding setting herself ablaze on account of either threat or coercion of the accused. The learned Counsel for the appellants, therefore, contends that the two dying declarations, i.e. one made to the Medical Officer and the other at Exh.42 recorded by P.W.3 A.S.I. Khan are contradictory and, therefore, it would be unsafe to base a conviction by picking and choosing one of the dying declarations. The learned Addl. Public Prosecutor has supported the findings recorded by the Trial Court. 9. It is a fact that the disclosure made by Sangita to the Chief Medical Officer emerges from the prosecution case itself. The disclosure of Sangita was to the effect that on account of rage she had set herself ablaze. While the said disclosure was made, it has been established from the evidence of P.W.3 A.S.I. Rashid Khan that the accused had 7 Cri.Appeal No.66 of 2011 either not told Sangita as to what she should state to the Medical Officer or that they had tutored her. According to P.W.3 Rashid Khan, the accused had not spoken to Sangita at all. Thus, the voluntariness of the said disclosure has certainly been established by the prosecution. Immediately thereafter statement at Exh.42 came to be recorded. Obviously, the aforesaid statement had been recorded after the arrival of her father. In the said statement at Exh.42 Sangita states that her mother-in-law told her to permit the husband, i.e. appellant no.1 to consume liquor and so saying poured kerosene on Sangita while accused no.1 set her ablaze. In cases resting on multiple dying declarations, the dying declarations on which reliance is placed, should in the first instance be fully established as a truthful and the voluntary narrations of the injured. The multiple dying declarations should be consistent with each other. In the present case, the two dying declarations are diametrically opposed. In one dying declaration Sangita states that she set herself ablaze while in the second dying declaration Sangita states that her mother-in-law poured kerosene and her husband set her ablaze. In such situation, it is not open to the Court to pick and choose any one dying declaration which would favour the prosecution. Both the dying declarations ought to be consistent if the conviction on the basis of the said dying declaration is to be sustained. In the present case, we find that acceptance of one dying declaration necessarily falsifies the other and in such situation, according to us no reliance at all can be placed on the two dying declarations. 8 Cri.Appeal No.66 of 2011 10. Prosecution has relied upon the evidence of P.W.2 Kashinath, father of deceased Sangita, who states about Sangita being harassed for non payment of dowry. However, since the Trial Court has acquitted the accused for offence punishable under section 498-A of the Indian Penal Code, we do not consider it necessary to advert to that part of the evidence of P.W.2 Kashinath. P.W.2 Kashinath further states that he had met Sangita in the Hospital and had inquired from her as to how she had sustained burns and Sangita had allegedly told him that her mother-in-law poured kerosene on her while her husband set her ablaze. In cross- examination he has admitted that after Sangita made the aforesaid disclosure he had gone to the Veergaon police station for lodging a report but police officer Shaikh had disclosed to him that a complaint had already been filed in respect of the burns sustained by Sangita and, therefore, P.W.2 Kashinath went home. On the next day he attended the funeral of Sangita. His statement, however, came to be recorded on 20.4.2009. Omission has been duly proved that he had not stated in his previous statement that he had gone to the Veergaon police station for lodging a complaint but was informed by police officer Shaikh that a complaint had already been received. 11. We are not inclined to place any reliance on the oral dying declaration made by Sangita to this witness. The conduct of this witness is wholly unnatural. After Sangita had disclosed to him that she had been 9 Cri.Appeal No.66 of 2011 set ablaze by her husband after her mother-in-law had poured kerosene, this witness, who was the father of Sangita, went home without informing the police. The fact that he had visited Veergaon police station for lodging a report has been duly proved as an omission. Even after funeral of Sangita was performed, no complaint came to be lodged by this witness at his behest. Statement of this witness came to be recorded thereafter. In such circumstances, therefore, according to us, since we have rejected the dying declarations made to the Medical Officer as well as to P.W.3 A.S.I. Rashid Khan, no reliance can be placed on the oral dying declaration. 12. We, therefore, find that there is no evidence worth the name for sustaining the conviction of the appellants. The two dying declarations, i.e. one made to the Medical Officer and the other recorded by P.W.3 A.S.I. Rashid Khan and the oral dying declaration made to P.W.2 Kashinath, are contradictory. Acceptance of any one dying declaration necessarily falsifies the other. In such circumstances, therefore, according to us, the appellants would be entitled to be given the benefit of doubt. 13. Accordingly, Criminal Appeal No.66 of 2011 is allowed and the conviction and sentence of the appellants is hereby quashed and set aside and the appellants are acquitted of the offence with which they were charged and convicted. Fine, if paid by the appellants be refunded 10 Cri.Appeal No.66 of 2011 to them. Since appellant no.1 Dadasaheb s/o Babasaheb Pawar is in jail, he be released forthwith if not wanted in any other case. Bail bonds of appellant no.2 - Kadubai, wife of Babasaheb Pawar, stand cancelled. (A.V. POTDAR, J.) ( P.V. HARDAS, J.) amj/cria66.11