1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 121 OF 2008 1 Ramesh Tukaram Rudraksha, age 30 years, occ. Agriculture, r/o Ravivarpeth, Ambajogai, District Parbhani, 2 Tukaram Bhagwan Rudraksha, age 60 years, occ. & r/o as above, 3 BhagirathibaiTukaram Rudraksha, age 61 years, occ. & r/o as above, 4 Rajendra Tukaram Rudraksha, age 35 years, occ. & r/o as above ...Appellants (Original accused nos. 1,2,3 & 5 respectively) VERSUS 1 The State of Maharashtra ...Respondent ..... Shri S.C.Bora, advocate for the appellants Shri K.J.Ghute Patil, A.P.P. for the respondent. ..... 2 CORAM : P.V.HARDAS AND SHRIHARI P.DAVARE, JJ. DATED : 27th January, 2010. ORAL JUDGMENT : (Per Shrihari P. Davare, J.) 1 The present appeal is directed against the judgment and order dated 31.3.2008 rendered by IIIrd Adhoc Additional Sessions Judge, Ambajogai, in Sessions Case No. 76 of 2005, convicting the appellant no.1 (original accused no. 1), namely Ramesh Tukaram Rudraksha for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer life imprisonment and to pay a fine of Rs.10,000/- with default condition for non-payment of fine to undergo R.I. for four years; and also convicting the said accused Ramesh for the offence punishable under Section 498-A r/w Section 34 of the Indian Penal Code and sentencing him to suffer R.I. for three years and to pay a fine of Rs. 3,000/- with default condition for non- payment of fine to undergo R.I. for six months; and also convicting the appellant no. 2 Tukaram, appellant no. 3 Bhagirathibai and appellant no. 4 Rajendra/original accused nos. 2, 3 and 5, respectively, for the offence punishable under Section 498-A r/w Section 34 of the Indian Penal Code and sentencing appellant no. 3 2 and appellant no. 3 i.e. original accused nos. 2 and 3 to suffer simple Imprisonment for two years each and to pay a fine of Rs. 1,000/- each with default condition for non-payment of fine to suffer further S.I. for six months; and sentencing appellant no. 4 i.e. original accused no. 5 to suffer rigorous imprisonment for three years and to pay a fine of Rs. 2,000/- with default condition for non-payment of fine to suffer further S.I. for six months. 2 The factual matrix of the prosecution case is as under :- PW9 PSI Sadashiv Chate was attached to Ambajogai police station at the relevant time in June, 2005, who received an intimation from police station officer that Shubhangi w/o Ramesh Rudraksha was admitted in S.R.T.R. Medical College and Hospital, Ambajogai due to burn injuries. Accordingly, Head Constable-Mr. Vidhate attached to police chowkie at S.R.T.R. Medical College and Hospital, Ambajogai recorded the statement of the injured Shubhangi (Exh.76) at about 4.15 a.m. to 4.40 a.m. on 14.6.2006 and obtained the endorsement of the concerned doctor thereon regarding consciousness of the injured, which disclosed the accidental burns sustained by injured Shubhangi. Thereafter at about 9.15 a.m. PW9 PSI Chate visited S.R.T.R. Medical College 4 and Hospital, Ambajogai and made inquiry with the concerned Medical Officer as to whether Shubhangi was in a position to give statement and the concerned Medical Officer i.e. PW6 Dr.Upendra Kudlikar replied in the affirmative. Hence, PW9 PSI Chate went to the burns ward and PW6 Dr. Upendra examined the patient Shubhangi in his presence and stated that she was in a position to give statement. Accordingly, PW9 PSI Chate recorded her statement in presence of PW6 Dr. Upendra, who made endorsement (Exh.63) on the said statement that Shubhangi was in a position to give the statement. The said dying declaration at Exh. 63 involves accused no.1 Ramesh in the alleged crime. Thereafter PW9 PSI Chate obtained her thumb impression thereon and returned to the police station and registered the crime at C.R.No. 166 of 2005 (Exh.89) for the offences punishable under Sections 498-A, 307, 323 and 504 r/w Section 34 of the Indian Penal Code. 3 Thereafter it is alleged that on 14.6.2005, PW9 PSI Chate visited the place of the offence and prepared spot panchanama in presence of panchas i.e. PW1 Basweshwar Kubade, which is marked as Exh.41. He also seized burn pieces of sari, one stove, one burnt match stick and match box under the said spot panchanama. During the course of investigation, PW9 5 PSI Chate arrested accused no.2 Tukaram and accused no.3 Bhagirathibai on 14.6.2005; whereas accused no.1 Ramesh, accused no.5 Rajendra and accused no. 6 Daivashala were absconding. PW9 PSI Chate also recorded statements of about ten witnesses. Thereafter he arrested accused no.1 Ramesh on 15.6.2005 under arrest panchanama. He had sustained burn injuries on his fingers and his under pant was having holes of burning and burnt pieces of sari as well as his face, hands and legs had signs of burn flames. He was sent to the Hospital for medical examination and his case papers were seized. On inquiry made by PW9 PSI Chate with accused no.1 Ramesh, accused no.1 Ramesh produced a plastic bottle of kerosene and his under pant and same were seized under panchanama Exh. 33. 4 Thereafter on 14.6.2006 a letter was issued to the Executive Magistrate, Ambajogai and PW7 Ganpatrao Shirsath, Naib Tahsildar, Parli recorded the dying declaration of injured Shubhangi at about 12.01 to 12.18 p.m. on 14.6.2005 (Exh.79), which also involves accused no.1 Ramesh in the alleged crime. According to the prosecution, patient Shubhangi died on 19.6.2005, and therefore, police Head Constable Vidhate prepared the inquest panchanama of her dead body on 20.6.2005 and had also taken the photographs of the dead body. 6 5 Accordingly charge under Section 302 was incorporated in the afore said crime. Moreover, the dead body of deceased Shubhangi was sent for postmortem examination and PW9 PSI Chate collected the postmortem report. PW9 PSI Chate also issued letter to the Tahsildar, Ambajogai for drawing the map of spot. Besides that, PW9 PSI Chate recorded supplementary statements of relatives of Shubhangi on 29.6.2005. On 10.7.2005 PW9 PSI Chate forwarded the muddemal property to the office of Chemical Analyser along with forwarding letter Exh. 93. On 31.7.2005 he received the orders of anticipatory bail in respect of accused Rajendra and Daivashala. After completion of investigation, he filed charge sheet against the accused persons before the learned Judicial Magistrate, First Class, Ambajogai. The reports of chemical analysis were received, which are produced at Exh. 94. Since the offences were triable exclusively by the Court of Sessions, learned Judicial Magistrate, First Class, Ambajogai committed the case to the Court of Sessions at Ambajogai. Accordingly, the learned IIIrd Adhoc Additional Sessions Judge, Ambajogai framed the charge against the accused persons at Exh.14. 6 To substantiate the charges levelled against the 7 accused persons i.e. accused no.1 Ramesh Rudraksha, accused no.2 Tukaram Rudraksha, accused no.3 Bhagirathibai Rudraksha, accused no.4 Rudrabai Gujar, accused no. 5 Rajendra Rudraksha and accused no.6 Daivashala Lovekar, prosecution examined in as much as nine witnesses as mentioned below : - PW1-Basweshwar Gunaji Kubade, panch to spot panchanama Exh. 41 PW2-Dhyanraj Narayan Gulshete, uncle of deceased Shubhangi before whom oral dying declaration claims to have been made. PW3-Prabhakar Sakharam Giram neighbour of father of Shubhangi, before whom oral dying declaration claims to have been made. PW4-Bhagwat Bapurao Dhulshete brother of Shubhangi before whom oral dying declaration claims to have been made. PW5-Rajabai Bapurao Dhulshete sister of deceased Shubhangi before whom oral dying declaration claims to have been made. PW6-Dr.Upendra Madhavrao Kudlikar Medical Officer at S.R.T.R. Medical College & Hospital, Ambajogai, who gave endorsements on dying declarations Exhs. 79 and 76. 8 PW7-Ganpatrao Kishanrao Shirsath Naib Tahsildar, Parali, who recorded dying declaration Exh.79. PW8-Bapurao Narayanrao Dhulshete father of Shubhangi before whom oral dying declaration claims to have been made. PW9-Sadashiv Vinayak Chate Investigating Officer. 7 The defence of the accused persons was of total denial. They stated that Shubhangi sustained accidental burn injuries and they have been implicated in the present case falsely and accused nos. 4, 5 and 6 were not residing at Ambajogai, since accused no.4-Rudrabai was residing at Naigaon, Taluka Kaij, accused no. 5-Rajendra was residing at Mumbai and accused no. 6-Daivashala was residing at Dighol-Deshmukh, Taluka Sonpeth, District Parbhani. It is also the contention of accused no.1 that after death of Shubhangi, his father-in-law requested him to marry with another daughter, but he refused to do so, and therefore, he has been implicated in this case falsely. Accordingly the accused persons faced the trial in Sessions Case No. 76 of 2005 for the charges in respect of offences punishable under Section 302, 498-A, 323, 504 r/w Section 34 of the Indian Penal Code and accused nos. 1, 2, 3 and 5/appellants herein came to be convicted and sentenced as afore said. Being aggrieved and 9 dissatisfied by the said conviction and sentence, appellants 1 to 4 herein have preferred the present appeal requesting for quashment thereof. 8 Before adverting to the submissions advanced by learned counsel for the appellants and the learned A.P.P. for the respondent/State, we feel it necessary to scrutinize the material evidence adduced and produced by the prosecution on record and in the said context, at the out set, principally the prosecution case is based upon three written dying declarations, whcih are as under :- (1) Dying declaration Exh.76 recorded by police Head Constable Vidhate, attached to police chowkie at S.R.T.R. Medical College & Hospital, Ambajogai at 4.15 a.m. to 4.40 a.m. on14.6.2005. (2) Dying declaration Exh.63 recorded by PW9 PSI Chate at 9.15 a.m. on 14.6.2005. (3) Dying declaration Exh. 79 recorded by PW7 Naib Tahsildar Ganpatrao Shirsath at 12.01 to 12.18 p.m. on 14.6.2005. 9 The prosecution also relies upon the oral dying declarations made by Shubhangi before PW2 Dhyanraj-uncle of Shubhangi, PW3 Prabhakar-neighbour of Shubhangi, PW4 10 Bhagwat-brother of Shubhangi, PW5 Rajabai-sister of Shubhangi and PW8 Bapurao-father of Shubhangi. Pertinently, the prosecution has not examined police Head Constable Vidhate, who was attached to police chowkie S.R.T.R. Medical College & Hospital, Ambajogai at the relevant time i.e. on 14.6.2005, who recorded the first written dying declaration Exh.76 of Shubhangi and no plausible explanation has been given for the said inaction on the part of the prosecution. Apart from that the said dying declaration is on record and marked at Exh.76 and on perusal of the contents of the said dying declaration, it is seen that the said dying declaration Exh.76 of victim Shubhangi was recorded first in point of time, which discloses that while she was cooking at night on 13.6.2005 on the stove, the stove got burst and thereby her sari caught fire and she sustained burn injuries, and therefore, she shouted and her niece Komal extinguished the fire. The said dying declaration also discloses that nobody set her on fire and she had no complaint against anybody. Thus, the said dying declaration Exh. 76 reflects that Shubhangi sustained burn injuries accidentally and she had no grievance against anybody. 10 Coming to the second written dying declaration Exh. 63, it appears that same was recorded by PW9 PSI Chate, who stated that the doctor examined the said patient in his presence and 11 informed that she was in a position to give the statement. Accordingly, he recorded the statement of Shubhangi in presence of the doctor, who put the endorsement that Shubhangi was in a position to give the statement while recording dying declaration Exh. 63. He also stated that he recorded the said statement in his own hand writing and obtained left thumb impression of Shubhangi thereon and he has recorded correctly the statement of Shubhangi as per her say and after recording the said statement, he went to police station and registered the offence at C.R. No. 166 of 2005 for the offences punishable under Section 498-A, 302, 323, 504 r/w Section 34 of the Indian Penal Code. In the cross-examination, PW9 PSI Chate admitted that dying declaration Exh.63 is not in question and answer form. He also stated that said dying declaration has been signed by Bapurao i.e. father of Shubhangi and Bhagwat the brother of Shubhangi. Hence, suggestion was given to him that he recorded the said statement as per say of PW8 Bapurao and PW14 Bhagwat, but same was denied by him. 11 On perusal of the contents of said second written dying declaration Exh. 63, it is seen that there are allegations of abuses and assault made to deceased Shubhangi against her husband Ramesh, mother-in-law Bhagirathibai, father-in-law Tukaram and 12 quarrel with sister-in-law Daivashala, Rudrabai and harassment at the hands of Rajendra. Pertinently, such allegations are absent in earlier dying declaration Exh. 76 and it is also curious to note that the said allegations of harassment are made by Shubhangi after eight years of marriage, that too for the first time in the afore said dying declaration Exh. 63. Moreover, it also appears that the sentence, “Mala Bhaya Rajendra Yacha Pan Tras Hota” has been interpolated in the said dying declaration subsequently. Shubhangi further refers in the said dying declaration in respect of occurrence of event at about 8.00 p.m. to 8.15 p.m. on 13.6.2005 that her husband Ramesh, mother-in-law Bhagirathibai, father-in-law Tukaram were at home and her husband asked her as to why she had gone out of the house and thereupon she stated that she had gone to purchase ice-cream for daughter and thereupon he quarrelled with her and abused her and the said narration of events is absent in the earlier dying declaration Exh. 76. She further stated that at that time she and her husband only were present in the house and her husband took kerosene bottle from beneath the chair and poured it on the person of Shubhangi and thereupon she started shouting and at that time he lit the match stick and threw it on her person and thereby her sari caught fire, and therefore, she shouted and her husband fled away from house and her parents-in-law came out of the house 13 and her niece Komal poured water on her person and extinguished the fire. Pertinently, the said contents of dying declaration are contradictory to the contents of earlier written dying declaration Exh. 76, since the contents of present dying declaration Exh. 63 attribute the overt act towards her husband Ramesh in respect of pouring kerosene on her person and setting her ablaze; whereas in earlier dying declaration Exh. 76, it is stated that while she was cooking, the stove was burst and her sari caught fire and thereby she was ablazed. It is also material to note that second dying declaration Exh. 63 was recorded by PW9 PSI Chate in presence of PW8 Bapurao father and PW4 Bhagwat brother of Shubhangi and their signatures have been obtained on the said dying declaration. 12 Learned counsel for the appellants canvassed that there is every possibility of tutoring deceased Shubhangi while recording the said dying declaration Exh. 63, since father and brother of deceased Shubhangi were present there. Considering the said submission, it is important to note that the first dying declaration was recordzed at 4.15 to 4.40 a.m. and second dying declaration Exh. 63 was recorded on the same day at 9.15 a.m. i.e. within a span of five hours, and while recording first dying declaration Exh. 76, no relatives were present; whereas at the 14 time of recording second dying declaration Exh. 63, father and brother of Shubhangi were present and it is important to note that while recording second dying declaration Exh. 63, deceased Shubhangi has changed her version attributing the authorship of setting her ablaze towards her husband i.e. accused no.1 Ramesh, and therefore, psosibility cannot be ruled out that the second dying declaration Exh. 63 might have been given by deceased Shubhangi at the instance of her father and brother who were present at the time of recording it. Hence, consequently it diminishes the credibility of said second dying declaration Exh. 63. 13 That takes us to the third written dying declaration Exh. 79, which was recorded by PW7 Naib Tahsildar, Parli Ganpatrao Shirasath, who stated that on 14.6.2005 he was serving as Naib Tahsildar at Ambajogai and he also was Executive Magistrate of Tahsil, Ambajogai and he received a letter from police station, Ambajogai on 14.6.2005 to record statement of Shubhangi, who was admitted in S.R.T.R. Medical College and Hospital, Ambajogai and the said letter is produced at Exh.78. Accordingly, he visited Ward No.14 in the said hospital and met the concerned doctor and the doctor examined the patient in his presence and gave the endorsement that the said patient Shubhangi was in a position to 15 give the statement. Accordingly, PW7 Shirsath recorded the statement of Shubhangi. Shubhangi in her statement stated that on 13.6.2005 at about 8.15 p.m. her husband Ramesh poured kerosene on her person and set her ablaze and her niece Komal extinguished the fire by pouring water. She also stated that her husband was present in the house, however, he has not made any attempts to extinguish the fire, but said that let her die. He also stated that he recorded the statement of Shubhangi as per her say and put her right hand thumb impression thereon. He also signed thereon and the said statement is produced at Exh.79. He further stated that doctor was present between 12.01 p.m. to 12.18 p.m. and he also put the endorsement before recording and after recording the statement Exh.79. 14 Considering the contents of third written dying declaration Exh.79, it is seen that PW7 Shirsath has proved the contents of said dying declaration Exh.79 and curiously the averments made by deceased Shubhangi in third dying declaration Exh. 79 that, “although her husband was present, he did not make any efforts to extinguish the fire and stated that let her die” are absent in earlier both the dying declarations Exhs. 76 and 63. Moreover, the said dying declaration Exh. 79 also reflects that Shubhangi stated that, “8 years have been passed for her 16 marriage and she was blessed with one daughter, aged 3 years” and above said averments are absent in earlier both the said dying declarations Exhs. 76 and 63. True it is, that the third dying declaration Exh. 79 attributes overt act towards her husband accused no.1 Ramesh and involves accused no.1 in the alleged crime, but the above referred contents as specified in Exh.79 to the effect that, “8 years have been passed for her marriage and she was blessed with one daughter, aged 3 years” were not stated in earlier two dying declarations as afore said. 15 Having the comprehensive view of all the three written dying declarations Exhs. 76, 63 and 79, it is amply clear that the first dying declaration discloses that Shubhangi met with accidental burns; whereas next two dying declarations Exhs. 63 and 79 raise finger against her husband i.e. accused no.1 Ramesh in respect of authorship of burns sustained by her and while recording second dying declaration Exh. 63 Shubhangi’s father and brother were present, as well as the above referred contents, as specified above, which were stated in third dying declaration Exh. 79, were not referred to in earlier two dying declarations Exhs. 76 and 63, and hence, undisputedly all the three written dying declarations are inconsistent and contradictory with each other, and therefore, same cannot be 17 construed as truthful, voluntary and reliable to base the conviction against the appellants herein. 16 Coming to the aspect of oral dying declarations allegedly made by deceased Shubhangi PW2 Dhyanraj i.e. uncle of deceased Shubhangi stated that on 13.6.2005 he was present at his village and accused Rajendra gave him phone call and informed that Shubhangi was admitted in the hospital, and therefore, he, his brother Bapurao and relatives went to Ambajogai and further went to the Government Hospital and saw Shubhangi. She was burnt and they had talk with her and at that time Shubhangi informed him that since beginning she was telling about the illtreatment and harassment and lastly her husband poured kerosene on her person, her brother-in-law Rajendra lighted the match stick and her sister-in-law put the latch on the door and thereby she sustained burn injuries. Shubhangi further told him that at the time of the incident the accused were demanding money for purchase of freeze and for non-payment of money they have set her on fire. 17 Pertinently, during cross-examination PW2 Dhyanraj deposed that he did state before police while recording his statement that Shubhangi told him that she was informing them 18 about the illtreatment since beginning, her brother-in-law lighted match stick and sister-in-law put latches to the doors and accused were demanding money for purchase of freeze, but such mention is not there in the statement and he could not assign any reason therefor, and it amounts to omission in that respect. Said omission elicited in cross-examination is vital and goes to the root of the matter. Apart from that, alleged oral dying declaration made by deceased Shubhangi before PW2 Dhyanraj implicates husband, brother-in-law Rajendra and sister-in-law and attributes overt act towards them and involves them in the alleged occurrence of the incident, as well as allegations were made that demand of money was made to her for purchase of freeze and due to non-payment of money, they set her on fire, but there is no reference of the said aspect in the earlier three written dying declarations i.e. Exhs. 76, 63 and 79 and no finger has been raised against brother-in-law and sister-in-law in the alleged written dying declarations, and therefore, needless to say that the said oral dying declaration alleged to have been made before PW2 Dhyanraj is inconsistent with the earlier written dying declarations Exhs. 76, 63 and 79. 18 Coming to the deposition of PW3 Prabhakar i.e. neighbour of Shubhangi’s father, who stated that on 13.6.2005 19 there was hue and cry in the house of Bapurao i.e. father of deceased Shubhangi, and therefore, he went to his house and learnt that Shubhangi was admitted in the hospital at Ambajogai. Therefore, he, parents of Shubhangi and other relatives went to the said hospital at Ambajogai at about 8.00 a.m. on the next day. He stated that he saw that Shubhangi was totally burnt, but she was talking and when he made inquiry with Shubhangi, she told that she had gone for bringing ice cream out side her door and at that time her husband, parents in law and sister in law were present in the house. Her husband asked why she went out of the house and by pouring kerosene set her on fire in presence of parents in law and sister in law. In the cross-examination, he stated that when he visited the hospital, her parents were present there and were crying and they were not talking with Shubhangi. No IV was given to Shubhangi. He also stated that he had talked with Shubhangi for about 10 minutes and doctor was not present when he was talking with her. During cross-examination omission was elicited in respect of presence of parents in law and sister in law at the time of incident. 19 Pertinently, the oral dying declarations made by Shubhangi before PW2 Dhyanraj and PW3 Prabhakar are not in consonance with each other and theory of Shubhangi going out of 20 house to bring ice cream for her daughter has not been reflected in the earlier oral dying declarations which were alleged to have been made by deceased Shubhangi before PW2, but same was cropped up while making the alleged dying declaration before PW3 Prabhakar. Moreover, the alleged overt act attributed to brother-in-law and sister-in-law in earlier oral dying declaration made before PW2 Dhyanraj has not been attributed in the earlier dying declaration made before PW3 Prabhakar. Hence, both the said oral dying declarations made before PW2 and PW3 by Shubhangi differ from each other. 20 Turning to the next oral dying declaration made by deceased Shubhangi before PW4 Bhagwat i.e. brother of Shubhangi, who deposed that on 13.6.2005 he received phone call from