1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.681OF 2005 1. Sagjanbai Bhagwat Kshirsagar aged about 50 years 2. Radhabai Madhukar Kshirsagar aged about 35 years Both resident of Barshi, Dist. Solapur, (In the custody of Yerawada Jail, Pune) ..Appellants. Vs. The State of Maharashtra ..Respondent. .... Mr. P.G. Kharat for the Appellants. Mrs. V.R. Bhonsale, APP for the State. .... CORAM: SMT. RANJANA DESAI and, DR. D.Y. CHANDRACHUD, JJ. 16th September, 2008 JUDGMENT (PER DR. D.Y. CHANDRACHUD, J.) : 1. The two Appellants were arraigned as the First and Second accused on the charge that on 22nd May, 2004, they had in furtherance of a common intention committed the murder of Surekha Shendage by pouring kerosene on her and setting her on fire. By his judgment dated 5th April, 2005 the Additional Sessions 2 Judge convicted the Appellants of offenses under Section 302 read with Section 34 of the Penal Code and sentenced them to undergo life imprisonment and to pay a fine of Rs.1,000/- or in default to suffer rigorous imprisonment for three months. The Appellants have also been convicted of offences under Section 504 read with Section 34 and have been sentenced to suffer rigorous imprisonment for six months and to a fine of Rs.500/-. 2. The deceased, Surekha resided at Barshi together with her husband and three sons. The First Appellant Sagjanbai was the sister of Surekha's husband, Indrajit. The Second Appellant Radhabai is the daughter-in-law of the First Appellant. The accused resided in close proximity to the house of the deceased. The case of the prosecution is that the Appellants suspected the character of the deceased and alleged that she was engaged in prostitution. On 22nd May, 2004 Surekha was alone at home at about 3.00 p.m. Atul, the twelve year old son of the deceased who deposed as P.W. 3 during the trial, is alleged to have entered the house and requested his mother to provide him lunch after which he proceeded to take his lunch in front of the house of her neighbour. The case of the prosecution is that the Appellants 3 entered the house and accosted the deceased with an allegation that she had an illicit relationship with another man. At that stage, it is alleged that the Second Appellant poured kerosene over the body of the deceased and the First Appellant set the deceased alight. The accused thereupon ran away. The victim raised a cry for help and her son Atul (P.W. 3) upon hearing her alarm attempted to save her by pouring water over her body. The victim was admitted to the Rural Hospital at Barshi at 3.30 p.m. and it is alleged that while furnishing her medical history to P.W. 7, the Medical Officer attached to the hospital, stated that she had received homicidal burns by the two Appellants. 3. Two dying declarations were recorded; the first at Exhibit 39 was recorded by P.W. 9 Mohan Mule who was a Special Executive Magistrate between 5.30 and 6.30 p.m. The second dying declaration at Exhibit 20 was recorded by P.W. 2, Hari Kale, the PSI attached to the Barshi Police Station, between 7.00 p.m. and 8.00 p.m. The victim expired on 23rd May, 2004 at 2.45 a.m. The case of the prosecution is that Atul who was the twelve year old son of the deceased was the only eye witness to the occurance and he was forwarded to the J.M.F.C. Barshi for recording his 4 statement under Section 164 of the Code of Criminal Procedure. Soon after the incident incriminating articles such as a plastic can containing kerosene and burnt pieces of matchsticks were seized under a Panchanama which were sent for Chemical Analysis. The report of the Chemical Analyst was received. Upon completion of the investigation the accused were committed to trial. The prosecution examined eleven witnesses. The trial has ended in a conviction in the terms which have already been noted earlier. 4. On behalf of the Appellants it has been submitted that (i) the condition of the victim who had received 91% burns was serious and reliance was sought to be placed on the inquest Panchanama and the postmortem record. Consequently, it was submitted that a person in the position of the victim would not have been in a position to make a dying declaration and in the absence of a certification of fitness by the doctor, no reliance could have been placed on the dying declarations; (ii) The thumb impression on the dying declarations is not clear which would create doubt in regard to the authenticity of the two dying declarations; (iii) There are glaring discrepancies in the case of the prosecution and though it was the case of P.W. 2 that an intimation, Exhibit 19, was 5 delivered by him to the Special Executive Magistrate – P.W. 9, P.W. 2 in the course of his cross -examination admitted that he had not personally delivered the intimation to the Special Executive Magistrate; (iv) There is a discrepancy as regards the time at which the death occurred; whereas the medical record indicates that the death had occurred at 12.45 a.m., the time mentioned in Exhibit 18 is 1.00 a.m.; (v) The postmortem notes do not reflect the presence of any other injury on the body of the deceased resulting from a scuffle and it is unlikely that there would have been no scuffle between the victim and the Appellants if, as alleged, the Appellants had attempted to set her on fire; (vi) It is unclear on the basis of the evidence on the record as to whether the incident had taken place inside or outside the house and (vii) No material witness was examined. 5. On the other hand, it has been urged on behalf of the State by the Learned APP that the case of the prosecution rested upon two dying declarations; the first at Exhibit 20 was recorded by PSI Hari Kale (P.W. 2) while the second was recorded by the Special Executive Magistrate Mohan Mule ( P.W. 9). On both occasions, the Medical Officer at the Rural Hospital – Dr. Namdeo 6 Patil (P.W. 8) – had examined the victim and had made an endorsement to the effect that the patient was conscious. P.W. 8 had examined the patient and had made an endorsement both before the dying declarations were recorded and thereafter. In fact, the second dying declaration was recorded in question and answer form and it was evident from the tenor of the statement that the deceased was in a position to make the statement. Both the dying declarations were consistent and had implicated the two Appellants. The Learned APP submitted that P.W. 3 who was the twelve year old son of the victim had turned hostile. However, consistent with the well settled position in law, it was open to the prosecution to rely upon the answers elicited in the course of the cross-examination. P.W. 3 had categorically stated that prior to the incident which led to the death of the victim both the accused had assaulted his mother. P.W. 3 denied the suggestion that his mother had committed suicide. In these circumstances, it was urged that the Additional Sessions Judge was justified in convicting the accused – Appellants of the charge of murder. 6. The case of the prosecution has substantially rested on two dying declarations. The first dying declaration at Exhibit 39 7 was recorded by P.W. 9 Mohan Mule who was a Special Executive Magistrate between 5.30 and 6.30 p.m. The dying declaration was recorded in question and answer form. The victim stated that she was 31 years of age and was married for nearly 14 to 15 years. She stated that the parental side of her family consisted of her mother, father and brother and that she had three children from the marriage. The victim stated that her son Atul ( P.W. 3) was in the house when the incident took place and he had attempted to douse the fire. The victim stated that on 22nd May, 2004 at about 3.00 p.m. the two accused entered her house and alleged that she was engaged in an illicit extra-marital relationship. The second accused poured kerosene over her and the first accused set her alight with a matchstick. The right thumb impression of the victim was taken at the foot of the dying declaration. The dying declaration contains an endorsement by P.W. 8, Namdeo Patil, the Medical Officer at the Rural Hospital, Barshi that the patient is conscious. The statement bears the right thumb impression of the victim. The second dying declaration was recorded between 7.00 p.m. and 8.00 p.m. by P.W. 2, Hari Kale, the PSI attached to Barshi Police Station. The dying declaration contains an endorsement both initially and at its end by P.W. 8 that the patient is conscious. The 8 dying declaration bears the right thumb impression of the victim. In the course of the dying declaration the victim stated that she was continuously being subjected to harassment by the accused who alleged that when she went to work as a manual labourer, she engaged in prostitution. The victim stated that an incident had taken place two days prior to the day on which she was set on fire viz. 22nd May, 2004. On the date of the actual incident, according to the victim at about 3.00 p.m., the two Appellants entered her house and once again alleged that she was engaged in prostitution. Thereupon the Second Appellant poured kerosene over her while the First Appellant set her on fire. The two Appellants fled from the scene and on hearing the cries of the victim her son Atul attempted to save her by dousing the fire by throwing water. 7. P.W. 7, Dr. Shital Bhopalkar, was on duty as Medical Officer at the Rural Hospital, Barshi on 22nd May, 2004 at about 3.30 p.m. when the victim was brought to the hospital. P.W. 7 deposed that the patient had given the history of her condition as being caused by the homicidal burns sustained through her near relatives viz. Sagjanbai (the First Appellant) and her daughter-in- 9 law (the Second Appellant). P.W. 7 deposed that the patient had sustained 91% burns – 36% over the chest and abdomen, 18% over the upper limbs, 36% over the lower limbs and 1% over the external genitalia. The medical case record at Exhibit 35 contains an endorsement in respect of the aforesaid medical history furnished by the victim to the Medical Officer. The medical case papers record that the pulse rate of the victim was 90 per minute while the blood pressure was 90/60. The general condition of the patient was not satisfactory. The face had been spared of burns. The medical record shows that the patient was examined again at 5.00 p.m. when the general condition and the parameters were the same. P.W. 8 Dr. Namdeo Patil deposed that the victim had been admitted under the supervision of his colleague who had given her the initial treatment. At about 5.30 p.m. an Honorary Magistrate had come to P.W. 8 and had requested him to examine the patient. Upon examination P.W. 8 found that the patient was fully oriented and conscious and was fit to furnish a statement. P.W. 8 deposed that he had posed certain questions to the patient to confirm her sense of orientation. P.W. 8 stated that at the commencement of the statement he had noted that the patient was conscious; that the complete statement of the patient was written 10 by the Magistrate in his presence upon which the statement was read over to the patient; the thumb impression of the patient was obtained thereon and upon the conclusion of the recording P.W. 8 had examined the patient again to confirm her orientation and physical ability. P.W. 8 stated that at 7.00 p.m. the PSI had approached him and had requested him to accompany him to the burns patient. P.W. 8 examined the patient and made an endorsement to the effect that she was conscious. P.W. 8 stated that the second dying declaration was also recorded in his presence by the PSI. P.W. 8 deposed that he made an endorsement at the end of the statement after examining the patient. In the course of the cross examination P.W. 8 stated that unless the blood pressure, respiration and pulse rate of the patient is seen, it could not be ascertained whether the patient was oriented. P.W. 8 admitted that he had not made any endorsement with regard to the blood pressure, pulse rate and the respiration rate. P.W. 8 also stated that it was true that consciousness and orientation were two different things. In our view, the line of cross examination will not carry the case of the Appellants any further. The medical case papers establish that the patient was examined upon admission at 3.30 p.m. on 22nd May, 2004 when both the 11 pulse and blood pressure readings were recorded. The condition of the victim was again re-examined at 5.00 p.m. when it was found to be the same as at admission. The two dying declarations were recorded between 5.30 p.m. and 8.00 p.m. There is absolutely no reason or justification to discard the evidence of P.W. 8 – Dr. Namdeo Patil to the effect that he had examined the victim; the victim was conscious and was in a position to make her dying declarations. The dying declaration at Exhibit 39 is in question and answer form. There is no reason to discard the testimony of P.W. 8, the Medical Officer attached to the Rural Hospital, who is an independent witness. There is no suggestion to the effect that the Medical Officer was deposing falsely at the behest of the family of the victim. In fact, as already noted earlier, P.W. 7 Dr. Bopalkar, who first examined the victim upon admission also recorded the medical history as furnished by the victim and of being informed of the homicidal burns which had been sustained as a result of the acts of the First Appellant and her daughter-in-law, the Second Appellant. 8. P.W. 2 Hari Kale was a PSI attached to the Barshi Police Station on 22nd May, 2004. P.W. 2 deposed that the Chief Medical 12 Officer of the Hospital had informed the police station of the burns which had been sustained by the victim in the course of the incident and P.W. 2 was directed by his ASI to proceed to the Rural Hospital to record the statement of the victim. P.W. 2 recorded the dying declaration at Exhibit 20 and deposed to the examination of the patient by P.W. 8 who had satisfied himself about the fitness of the victim to make the statement. 9. P.W. 3 at the trial was Atul, the twelve year old son of the victim. P.W. 3 was declared hostile. Now it is a settled principle of law that the entire evidence of a witness who is declared to be hostile is not liable, ipso facto, to be excluded or rendered unworthy of consideration on that ground. When a prosecution witness is cross – examined and contradicted with the leave of the Court by a party calling him for evidence, it is for the Court of fact to consider in each case whether the witness stands discredited or can still be believed in regard to any part of his testimony. In an appropriate case, the Court can rely upon a part of the testimony of such a witness if it is found to be creditworthy. ( Gura Singh v. State of Rajasthan1). P.W. 3, during the course of his deposition 1 AIR 2001 SC 330. 13 stated that both the accused were residing near the house of his parents and that at 3.00 p.m. on the date of the incident his mother alone was present at the house. P.W. 3 stated that upon being provided lunch by his mother, he had proceeded to eat his food in front of the house of a neighbour, Mangal Salunkhe when he was approached by a small girl who informed him that his mother had been burnt. P.W. 3, during the course of his cross examination admitted that one day prior to the date of the incident both the accused and the husband of the second accused had assaulted his mother on the ground that she was not behaving properly and was indulging in prostitution. P.W. 3 was confronted with his earlier statement which was recorded by the J.M.F.C., Barshi in which he had stated that while he was taking lunch, the Appellants had entered the house and had set fire to his mother by pouring kerosene on her. P.W. 3 stated that he had so stated falsely before the Magistrate. P.W. 3 admitted that he was on talking terms with the accused and that he felt that both the accused are in jail and should be released. P.W. 3 denied the suggestion that he had been informed by his mother that it was because of a quarrel between herself and his father that she had poured kerosene on her person and had set herself on fire. P.W. 3 is a young child of 14 the age of twelve. Reading the testimony of the child witness it is evident that he has been tutored to deny what he had seen on the date of the incident and to depose that what he has stated before the J.M.F.C., Barshi in his earlier statement was false. Accused No.1 is the sister of P.W. 3's father, while accused No.2 is the daughter-in-law of the first accused. In the course of his cross- examination P.W. 3 has admitted that relationship and stated that he believed that both the accused were in jail and should be released. The testimony of P.W. 3 should, in our view, be relied upon to the limited extent that it establishes that (i) On the date of the incident at 3.00 p.m. the victim was alone present in the house; (ii) One day prior to the incident both the accused had assaulted the deceased on the ground that she was not behaving properly and was engaged in prostitution and (iii) The denial of the suggestion that P.W. 3 had been informed by his mother that she had set herself on fire as a result of an altercation with her husband. 10. On behalf of the Appellants, the dying declarations were sought to be discredited on the ground that a fitness certificate was not not obtained from the doctor. Counsel appearing for the 15 Appellants relied on a judgment of a Division Bench of this Court in Vasanta Shrawan Gajbhiye v. State of Maharashtra2 where the Bench found that though the victim had sustained 100% burn injuries, no certificate of fitness of the treating doctor had been obtained. Another judgment of a Division Bench in Ganesh Pundalik Karankar v. State of Maharashtra3 was also relied upon. Reliance was also placed on the Division Bench judgment in State of Maharashtra v. Manohar Mukindrao Tayade4, where it was held that having regard to the nature and extent of the injuries sustained, there was a doubt in regard to the mental condition of the victim. 11. In Laxman v. State of Maharashtra5, a Constitution Bench of the Supreme Court held that the settled position in law is that a dying declaration should be of such a nature as to inspire full confidence of the Court as regards its truthfullness and correctness, before it could be acted upon. It is the duty of the Court to assess as to whether the deceased had been tutored or prompted. The Constitution Bench held that it is not the position in 2 2007 ALL MR (Cri) 3474. 3 2005 ALL MR (Cri) 1001. 4 2005 ALL MR (Cri) 469. 5 AIR 2002 SC 2973. 16 law that a dying declaration would have to be rejected in the absence of a certification by the doctor in regard to the fitness of mind of the declarant. The Supreme Court held thus : “Normally, therefore, the courts in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A clarification by the doctor is essentially a rule of caution and therefore the voluntary 17 and truthful nature of the declaration can be established otherwise.” (emphasis supplied) 12. The judgment of the Constitution Bench was followed in the recent judgment of the Supreme Court in Sher Singh v. State of Punjab6. In Vikas v. State of Maharashtra7, the earlier judgments on the subject were revisited and the principles of law laid down therein have been reiterated by the Supreme Court. The judgment of the Supreme Court in Ramilaben Hasmukhbhai Khristi v. State of Gujarat8 upon which reliance was placed by Counsel appearing for the Appellants arose in a situation where there were four dying declarations. The Supreme Court noted that “there are deviations from statement to statement, consistency is conspicuously missing” (para 32 at page 70). The judgment of the Supreme Court in Laxmi v. Om Parkash9 was an appeal by the mother of the deceased against a judgment of acquittal. All the five dying declarations were held not to be worthy of credence. The Appeal was accordingly rejected. 6 (2008) 4 SCC 265. 7 (2008) 2 SCC 516. 8 (2002) 7 SCC 56. 9 2001(4) SCALE 241. 18 13. In the present case, P.W. 7 who initially treated the deceased and recorded the medical history and P.W. 8 who was present when the two dying declarations were recorded are doctors : both were attached to the Rural Hospital at Barshi. They are independent witnesses who had no reason to depose falsely. P.W. 8 who was the Medical Officer at the Barshi Rural Hospital, deposed that he had examined the victim and put to her questions to confirm her sense of orientation. P.W. 8 deposed that he had found on his examination that the victim was fully oriented and conscious. P.W. 8 deposed that he was present when both the dying declarations were recorded. There is absolutely no reason or justification to discard the testimony of P.W. 8 Dr. Namdeo Patil