1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPEAL NO.602 OF 2008 Ambadas Haribhau Jadhav, Age : 25 years, occ. R/o Pimpalgaon Peth, Taluka Sillod, District Aurangabad ..APPELLANT VERSUS The State of Maharashtra ..RESPONDENT Mr Joydeep Chatterji, Advocate for the appellant; Mr K.S. Patil, A.P.P. for the respondent. CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. DATE : 10th March, 2010 ORAL JUDGMENT (PER P.V. HARDAS, J.) The appellant, who stands convicted for an offence punishable under section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs.2,000/-, with a default stipulation of undergoing further R.I. for two months in the event of non payment of fine, by the Additional Sessions Judge-3, Aurangabad, by judgment dated 28.8.2008, in Sessions Case No.22 of 2008, by this appeal questions the correctness of his conviction and sentence. 2 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus :- P.W.7 Police Head Constable Sharad Salve, who was attached to the Ghati Police Chowki, was present at the Police Chowki in the Ghati Hospital on 6.10.2007. At about 2.45 a.m. one Subhash Dagdu Lonkar had admitted injured Manisha, wife of the appellant in the Ghati Hospital as Manisha had sustained burns. A M.L.C. report came to be forwarded to the Sillod Police Station and on the basis of the said M.L.C. report at Exh.34, the P.S.O. of the Sillod Police Station had directed P.W.7 P.H.C. Salve to record the statement of Manisha. The M.L.C. report at Exh.34 was in respect of Manisha sustaining accidental burn injuries on account of the accidental fall of a small kerosene lantern placed on the shelf in the house. Accordingly the statement of Manisha came to be recorded by P.W.7 Head Constable Salve at Exh.35 after obtaining the opinion of P.W. 4 Dr. Niraj Kamat regarding the fitness of Manisha to give her statement. On the basis of the statement of Manisha at Exh.35, on 13.10.2007 an offence vide Crime No.137 of 2007 came to be registered under sections 302, 498-A, 323 and 504 of the Indian Penal Code. Prior to that, on the basis of the report of P.W.7 at Exh.37, accidental death came to be registered on 12.10.2007 under section 174 of the Code of Criminal Procedure. The report of P.W.7 Head Constable Salve, after having recorded the statement of Manisha at Exh.35 is in respect of Manisha 3 sustaining burn injuries accidentally on account of the accidental fall of a small kerosene lantern, described by the witnesses as a "Chimani", from the shelf in the house. The investigation, after registration of the offence came to be entrusted to P.W.8 P.I. Kakade, who was attached to the Sillod Police Station (Rural). The accused accordingly came to be arrested on 15.10.2007 under the arrest panchnama at Exh.40. On the same day the wearing apparel of the accused came to be seized vide seizure memo at Exh.41. During custodial interrogation the accused expressed his willingness to point out the place where a kerosene Can was hidden and accordingly his memorandum came to be drawn in the presence of panch witnesses at Exh.42. Thereafter the accused led the police and the panch to village Pimpalgaon Peth and then to his residential house and produced a Can of kerosene with capacity of 5 Liters. The same came to be seized as per seizure memo at Exh.30. The scene of the offence panchnama had been drawn at Exh.19. Thereafter seized property came to be forwarded to the Chemical Analyser. The report of the Chemical Analyser is at Exh.44. 3. Further to the completion of investigation a charge-sheet against the appellant came to be filed. On committal of the case to Court of Sessions, Trial Court vide Exh.3 framed a charge against the appellant for offence punishable under section 302, 498-A and 323 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. The main- stay of the prosecution case revolves round the two dying declarations; 4 one recorded by P.W.7 Head Constable at Exh.35 and the second dying declaration recorded by P.W.2 Rupa Chitrak, Executive Magistrate, at Exh.16. The prosecution also heavily relies upon the oral dying declaration allegedly made by injured Manisha to her mother P.W.5 Anusayabai in the hospital. 4. In order to effectively deal with the submissions advanced before us by Shri Joydeep Chatterji, learned Counsel for the appellant and Shri Patil, learned A.P.P. for the respondent - State, it would be useful to refer to the evidence of the prosecution witnesses. P.W.7 Head Constable Salve, as pointed out by us above, has recorded the statement of Manisha at Exh.35. In cross-examination he has admitted that in column no.10 and 16 of the inquest panchnama it was mentioned that deceased Manisha had sustained injury by the accidental fall of the kerosene lantern from the shelf. The inquest panchnama obviously had been drawn after the statement of Manisha at Exh.35 had been recorded. Curiously, the inquest panchnama and the statement of Manisha at Exh. 35 had been scribed by P.W.7 Head Constable Salve. In response to the Court question P.W.7 Head Constable Salve has admitted that the contents of column no.10 and 17 of the inquest panchnama at Exh.8 were written on the basis of the M.L.C. report at Exh.34. The prosecution has not endeavoured to explain as to how and on the basis of whose information the M.L.C. report at Exh.34 had been issued in which it was stated that Manisha had sustained injuries on account of the small 5 kerosene lantern which was placed on the shelf. 5. The dying declaration at Exh.16 came to be recorded by P.W.2 Rupa Chitrak, an Executive Magistrate. P.W.2 Rupa Chitrak states about receiving the communications from the police for recording the statement of injured Manisha and proceeding to the Ghati Hospital. She states that she had ascertained the condition of Manisha from P.W.4 Dr. Niraj Kamat., the Medical Officer who was attending Manisha in the hospital. She states that upon P.W.4 Dr. Niraj Kamat certifying that Manisha was in a fit condition to give her statement, she recorded the statement of Manisha at Exh.16. She has been cross-examined at length but nothing of importance has been elicited in the cross-examination. 6. Mr Joydeep Chatterji, learned Counsel for the appellant has urged before us that both the dying declarations at Exh.35 and the dying declaration at Exh.16 are inadmissible and no reliance can be placed on the said two dying declarations on the ground that neither P.W.7 Head Constable Salve nor P.W.2 Rupa Chitrak proved the contents of the dying declaration. All that these two witnesses deposed is about recording of the dying declaration without proving the contents i.e. without stating on oath as to what was told to them or what was narrated by injured Manisha. Reliance is placed upon the judgment of the Division Bench of this Court in Jivan Tulsiram Dhavali & anr. vs. State of Maharashtra, 2008 ALL MR (Cri) 2018 and Deorao Sonbaji Bhalerao & anr. vs. 6 State of Maharashtra, 2008 ALL MR (Cri) 1921. Our attention has also been invited to the Division Bench of this Court in Laxmibai Maruti Satpute & ors. vs. State of Maharashtra, 2010 ALL MR (Cri) 182, wherein the Division Bench of this Court, to which one of us (P.V. Hardas, J.) was a member, had taken a similar view. In that light of the matter, therefore, it is urged before us that the said two dying declarations are inadmissible in evidence. 7. We have perused the aforesaid three judgments and the said judgments clearly lay down that it is incumbent on the prosecution to prove the contents of the written dying declaration. In the present case both the witnesses i.e. P.W.7 Head Constable Salve and P.W.2 Executive Magistrate Rupa Chitrak have not adverted to the contents of the dying declaration. In that sense, therefore, the contents of the dying declaration have not been proved. Accordingly therefore, according to us the aforesaid two written dying declarations at Exh.35 and at Exh.16 are inadmissible in evidence and no reliance at all can be placed on the said two dying declarations. The said two dying declarations, therefore, will have to be left out of consideration. 8. The next circumstance on which the prosecution has relied is the oral dying declaration made by injured Manisha to her mother P.W.5 Anusayabai. Anusayabai states about receiving information about admission of Manisha in the hospital and about proceeding to the Ghati 7 Hospital. She states that upon reaching the Ghati hospital she had inquired from Manisha and Manisha had told her that in the evening the accused had returned home under the influence of liquor and had assaulted her and thereafter had poured kerosene on her and had set her ablaze. In cross-examination Anusayabai has admitted that she had not communicated this information to her other relatives. She has admitted that her relatives had arrived in the hospital 2 to 4 days after the incident. She has also admitted that despite disclosure of the information by Manisha she did not feel it necessary to lodge a report with the police. She has admitted that police were present in the hospital when Manisha had died. She has also admitted that the police were present at the time of the funeral. Moreover, the alleged oral dying declaration has been proved as an omission in her previous statement recorded by P.W.8 P.I. Kakde. P.W.8 P.I. Kakde has admitted that Anusayabai had not stated in her previous statement about the oral dying declaration made by Manisha to her. Apart from that, the statement of this witness under section 161 of the Code of Criminal Procedure came to be recorded on 25.10.2007. Manisha had died on 12.10.2007. Despite the inordinate delay of 13 days in recording the statement, there is an omission in respect of the oral dying declaration in her statement recorded under section 161 of the Code of Criminal Procedure. In that light of the matter, therefore, according to us no reliance whatsoever can be placed on the oral dying declaration alleged to have been made by Manisha to her mother P.W.5 Anusayabai. 8 9. If the two dying declarations at Exh.35 and Exh.16 and the oral dying declaration made to P.W.5 Anusayabai are left out of consideration, there is no evidence worth the name. We have perused the two dying declarations at Exh.16 and Exh.35. We find that there is variance in the said two dying declarations. Variance is in respect of the prelude to the incident and the manner of setting Manisha ablaze. Mr Joydeep Chatterji, learned Counsel for the appellant has invited our attention to the judgment of Division Bench of this Court in Suresh s/o Arjun Dodorkar (Sonar) vs. State of Maharashtra, 2005 ALL MR (Cri) 1599, to which one of us (P.V. Hardas, J.) was a member. The Division Bench has held as under :- "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 accused. However, there is variance. There is also variance in respect of the incident itself. The variance is apparent on perusal of the dying declaration and can be discerned from 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 9 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 Exhs.24 and 27." In the present case in the first dying declaration at Exh.35 Manisha ascribes that it was on account of Manisha questioning the accused as to why he was regularly consuming alcohol and the accused in a fit of rage set her ablaze. In the second dying declaration at Exh.16 Manisha makes no reference to her questioning the accused about the habit of the accused of consuming alcohol but states that the accused had quarrelled with her and thereafter had poured kerosene and set her ablaze. In any event, since we have held that the two dying declarations cannot be relied upon, according to us there is no evidence which would convince the Court for sustaining the conviction of the appellant. The appellant in such circumstances, according to us, is entitled to be given the benefit of doubt. 10 10. Accordingly, Criminal Appeal No.602 of 2008 is allowed and 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 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. (SHRIHARI P. DAVARE, J.) (P. V. HARDAS, J.) amj/cria602.08