1 cria277.11 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 277 OF 2011 Rameshwar S/o Vithoba Gaikwad Age : 27 years, Occ : Labour, R/o Waghola, Tq. Phulambri, Dist. Aurangabad. ..APPELLANT -VERSUS- The State of Maharashtra Through the Police Inspector, M.I.D.C., Waluj Police Station, Waluj, Tq. & Dist. Aurangabad (Notice to be served through The Public Prosecutor, High Court Bench at Aurangabad. ..RESPONDENT ..... Shri Joydeep Chatterji, advocate for the appellant. Smt. S.D. Shelke, A.P.P. for Respondent/State. ..... CORAM : A.H. JOSHI AND A.M. THIPSAY , JJ. DATE : 14th November, 2011 JUDGMENT : (PER A.M. THIPSAY, J) 1. The appellant was the accused in Sessions Case No. 270 of 2008, which had been filed in Sessions Court at Aurangabad. The allegation against the appellant was that he had committed the offences punishable under Sections 302 and 498-A of the Indian Penal Code. After holding trial, the learned Additional Sessions Judge-5, Aurangabad, sentenced the appellant to suffer imprisonment for life and to pay a fine of Rs. 5,000/-, with a default sentence, with respect to the offence punishable under Section 302 of the Indian Penal Code; and to suffer rigorous imprisonment for three years and to pay a fine of Rs. 5,000/-, with a default sentence with respect to the offence punishable under Section 498-A of the Indian Penal Code. The appellant, being aggrieved by the said judgment of conviction and the sentences imposed upon him, has filed the present appeal. 2 cria277.11 2. The prosecution case before the trial Court was, in brief, as follows : a) That, the appellant was married to Shobha-the deceased-some time in the year 2005. The appellant and Shobha were residing in their own house with their child-Sanket-aged about 2 years. The appellant initially treated Shobha properly, but later on started insisting that she should bring some money from her parents and started harassing her on that account. On some occasions, Shobha had gone to her father and maternal uncle and brought some money, which was given to the appellant and spent by him. After spending the amount, the appellant again started harassing Shobha by abusing and beating her and that, about a month prior to the incident, he started insisting that Shobha should bring an amount of Rs. 50,000/- from her parents. The appellant and Shobha attended the marriage of the brother of the appellant about five to six days prior to the incident; and even thereafter, the appellant was beating and abusing Shobha. b) That, on 04.06.2008, at about 9 a.m., the appellant started quarrelling with Shobha questioning as to why she had not brought the amount of Rs. 50,000/- from her parents. That, during the quarrel, the appellant poured kerosene over the person of Shobha and set her on fire by lighting a match stick. Shobha raised cries, as a result of which, persons residing in the neighbourhood, including Rekha Ghait (DW-1) and Kautik Thorat (DW-2) came there. The fire was extinguished and Shobha was taken to GHATI hospital. A medico legal case bearing No. 212 of 2008 was got registered at M.I.D.C. Waluj Police Station, Aurangabad. Police Head Constable Digamber Mupde (PW-4) 3 cria277.11 recorded statement of Shobha (Exhibit-19). Shobha stated that the appellant had been ill-treating her, that he was harassing her for money and that, the appellant had poured the kerosene over her person and had set her on fire. c) Based on this statement, a case in respect of offences punishable under Sections 307 of the Indian Penal Code and 498-A of the Indian Penal Code was registered by Shripad Paropkari, Deputy Superintendent of Police, (PW-3). It was entrusted to P.S.I. Laxman Borse (PW-7) who commenced the investigation. The appellant was arrested on the same day i.e. on 04.06.2008. On the next day Chandrakant Sude, Naib Tahsildar & Special Executive Magistrate (PW-6) again recorded a statement of Shobha, in which also, she stated that the appellant had poured kerosene over her and had set her on fire. On 08.06.2008, Shobha succumbed to the burn injuries. The cause of death of Shobha was described in the notes of the post- mortem examination on the dead body of Shobha as "Shock due to burns". Thereafter, the accusation of the offence punishable under section 307 of the Indian Penal Code was changed to one punishable under Section 302 of the Indian Penal Code. 3. The prosecution examined seven witnesses during the trial, four of whom have already been referred to above while narrating the prosecution case. The others are Jagannath Tupe-father of Shobha-(PW-1), Shivaji Kale- maternal uncle of Shobha-(PW-2), Dr. Bhushan Ubhale (PW-5), who had examined Shobha before her dying declarations were recorded by Mudpe- Police Head Constable (PW-4) and Naib Tahsildar/Special Executive Magistrate-Chandrakant Sude (PW-6). 4 cria277.11 4. In addition to the oral evidence, a number of documents were tendered in evidence, marked and exhibited. Amongst them are, the notes of the post- mortem examination (Exhibit-23), record of Dying Declaration (Exhibit-33) made by Shobha to Naib Tahsildar/Special Executive Magistrate-Chandrakant Sude (PW-6) and record of Dying Declaration (Exhibit-19) made to the Police Head Constable-Digambar Mupde (P.W.4). 5. In his examination under Section 313 of the Criminal Procedure Code, the appellant, inter alia, submitted that Shobha had committed suicide. The appellant did not examine himself as a witness but examined two witnesses in defence, as aforesaid. 6. After considering the evidence adduced before it, the trial Court held that the charge of offences punishable under Section 302 of the Indian Penal Code and Section 498-A of the Indian Penal Code had been proved against the appellant. As such, he was convicted and sentenced, as aforesaid. 7. We have heard Mr. Joydeep Chatterji, the learned Advocate for the appellant and also Smt. S.D. Shelke, learned Assistant Public Prosecutor for respondent-State. With the assistance of the learned counsel, we have gone through the entire evidence and the impugned judgment. 8. It is contended by Mr. Chatterji, that the order of conviction, as recorded by the trial court, is not in accordance with law. He submitted that the case against the appellant was based only on dying declarations and that, the versions in the dying declarations being different, it was not proper or legal to record conviction on that basis. He also submitted that the learned Additional 5 cria277.11 Sessions Judge failed to consider or appreciate the defence evidence in its proper perspective. According to him, the appellant was entitled to be acquitted. 9. The learned A.P.P, on the other hand, contended that the dying declarations of Shobha have been rightly believed by the learned Additional Sessions Judge and that, the conviction recorded on the basis of the dying declarations, is proper and legal. 10. We may now examine the evidence in respect of the dying declarations made to Mupde-Police Head Constable (PW-4) and Chandrakant Sude-Naib Tahsildar/S.E.M. (PW-6), a record of which is at Exhibit-19 and Exhibit-33, respectively. The first of these dying declarations was made to Digambar Mupde-Police Head Constable (PW-4) and second was made to Chandrakant Sude-Naib Tahsildar/Special Executive Magistrate (PW-6). Both these dying declarations are said to have been recorded in presence of Dr. Ubhale (PW-5), who is said to have examined Shobha for ascertaining and certifying her state of mind at the material time. Thus, for evaluation of these dying declarations, the evidence of Mupde-Police Head Constable (PW-4), the evidence of Dr.Ubhale (PW-5) and the evidence of Chandrakant Sude-Naib Tahsildar/Special Executive Magistrate- (PW-6), as also the record of dying declarations at Exhibit-19 and Exhibit-33, need to be carefully scrutinized. 11. According to Police Head Constable Mupde (PW-4), on 04.06.2008 at about 10.55 a.m., P.S.O. Nisar registered a medico legal case and directed him to inquire into the same. Mupade then went to Ward No. 22/23 of GHATI Hospital, where Shobha was admitted. He met Shobha, inquired about her name and then went to the "concerned Doctor" for ascertaining whether 6 cria277.11 Shobha was in a fit state of mind, to make a statement. According to Mupde, Doctor gave his opinion that patient was in a fit state of mind to give a statement and thereafter, Mupde proceeded to record the statement of Shobha in presence of the said Doctor. He has then stated what Shobha stated before him and that, the record of the said statement made by him (Exhibit-19) was true and correct. In the cross examination, he stated that the direction to go for inquiry pursuant to the medico legal case was given to him at about 11 a.m. and that, thereafter, he went to GHATI Hospital and that, he went to Shobha within one hour from 11.00 a.m. It was suggested to him that when he went to Shobha, her `relatives of parents side', were present there, but he denied the said suggestion as "not true". He stated that he could record the statement within a half an hour. According to him, he was in the hospital for about two and half hours. His evidence further shows that from the hospital, he went to Tahsil office at Aurangabad for giving a letter to the Naib Tahsildar/Special Executive Magistrate in connection with recording of dying declaration of Shobha. According to him, he reached the Tahsildar's office at about 3.00 to 3.30 p.m. and was there till 4.30 p.m. According to him, the statement of Shobha, that was recorded by him earlier, was with him at that time. His evidence also reveals that from the Tahsildar's office, he directly went to the place of incident where he remained till 6.45 p.m. The suggestion that Shobha had not made any statement to him and he has prepared a false record in that regard has been denied by him, as false. He however, admitted that as per the intimation that was initially received by him in connection with medico legal case, Shobha had set herself on fire. 12. Coming to the evidence of Chandrakant Sude (PW-6), he states that on 04.06.2008, he received a letter from M.I.D.C. Waluj Police Station with a request to record dying declaration of Shobha. He claimed to have gone to the 7 cria277.11 hospital at about 11 a.m. on the next day i.e. on 05.06.2008. According to him, he went to the Ward no. 22/23 and asked the "concerned doctor" to give his opinion whether Shobha was in fit state of mind to give her statement. According to him, since the doctor certified that Shobha was in a position to give statement, he recorded her statement after asking her relatives to leave the ward. He then stated what Shobha allegedly told him and further stated that the record of the same made by him in his own handwriting (Exhibit-33) was true and correct. 13. We may now examine the evidence of Dr. Bhushan Ubhale (PW-5). Dr. Bhushan Ubhale has stated that on 04.06.2008, he was attached to the burn ward no. 22/23 of GHATI hospital and that, one Shobha Gaikwad was indoor patient in the said ward. According to him, at about 5.30 p.m. one constable from M.I.D.C. Waluj Police Station requested him to examine the said patient and asked for a certificate whether the said patient was in a fit state of mind to make a statement. That, this witness then examined Shobha and found that she was conscious, oriented in time, place and person, and therefore, was in a sound state of mind. According to him, the Constable started recording of statement of Shobha in his presence and that, after completing of recording of statement, this witness again examined Shobha and found that she was conscious, oriented in time, place and person and was in a sound state of mind. That, he then made endorsement to that effect on the statement of Shobha. The endorsement, which is on the same paper, on which the statement of Shobha (Exhibit-19) has been recorded, has been separately marked as Exhibit-26. 14. It would be interesting to note that though this witness is said to be concerned also with the recording of the other dying declaration made by 8 cria277.11 Shobha and recorded by Chandrakant Sude-Naib Tahsildar/Special Executive Magistrate (PW-6), he did not mention anything about it, in his examination- in- chief, which was recorded on 30.08.2010. In fact, in the cross examination he was asked whether he had made a similar type of endorsement on any other document, to which he replied in negative. He also admitted that he had not maintained any record to show that upon the request of constable, he initially examined Shobha and found her to be well oriented. It has been revealed in the cross examination, that when he examined Shobha, her relatives i.e. her parents and others were near her. The witness claimed that he himself asked the relatives to leave the ward. It was suggested that he never examined Shobha, but that suggestion was denied by him. 15. It is seen that Dr. Bhushan Ubhale (PW-5) was again recalled for further examination-in-chief on 10.03.2011, on an application made by the prosecution. This time, he has given evidence with respect to the second dying declaration (Exhibit-33) made by Shobha and recorded by Chandrakant Sude-Naib- Tahsildar/Special Executive Magistrate (PW-6); and it is obvious that, that was the purpose of recalling him. After recall, he stated that, the Special Executive Magistrate came to the hospital and requested him in writing to ascertain whether Shobha was in a state of mind to make statement. That, he then went to a ward no.22/23 and after examining Shobha concluded that she was conscious and well oriented. That, he then asked the relatives of Shobha, who were present there, to go out; and then, the statement of Shobha was recorded by the Special Executive Magistrate in his presence. That, thereafter he made endorsement upon the statement recorded by the Special Executive Magistrate. He has identified said endorsement, which has been marked as Exhibit-43, which reads as under : 9 cria277.11 "05.06.2008, 11: 15 a.m. Patient was conscious oriented in time/place and person and was in a complete sound state of mind during the period of 11:15 to 11:45 am and gave statement infront of me. -Sd- Dr. Bhushan Ubhale General Surgeon 16. It is noticed that the aforesaid endorsement (Exhibit-43) is not on the statement of Shobha, recorded by the Naib Tahsildar/Special Executive Magistrate (PW-6) but on a letter ( Exhibit-31) purportedly written by the said Naib Tahsildar/Special Executive Magistrate to the Medical Officer attached to GHATI hospital. Thus, the claim of the witness that he made the said endorsement on the statement recorded by the Special Executive Magistrate is revealed to be incorrect. 17. In the cross examination, when questioned about not having brought the case papers with respect to the examination of Shobha, he submitted that he did not find the case papers. He was unable to state, as to on how many occasions he had examined Shobha. This indicates that this time he forgot the alleged happenings, with respect to the dying declaration of Shobha recorded by Mupde (PW-4), as had been mentioned by him when he was initially examined. 18. It may be observed that while basing the conviction solely on dying declaration or dying declarations, the evidence with respect to such dying declaration must be such so as to inspire confidence. The Court must be satisfied, firstly, about the fact of such declaration having been made by the 10 cria277.11 declarant. This would involve the appreciation of the evidence of the person or persons, who say that such declaration was made to them or in their presence. If the dying declaration made by the declarant is claimed to have been recorded, then the Court should be satisfied about the accuracy of such record, for which, again, assessment of the evidence of the person, who witnessed making of declaration and/or the person or persons making a record thereof, or otherwise involved in the process of making the record, would be necessary. It is on being satisfied about these aspects that the Court will have to look at the version of the declarant as reflected in the dying declarations and then judge whether it is reliable and acceptable, by applying the same parameters which the Court applies for judging veracity of the testimony of a witness. This may involve, inter alia, the assessment of the physical and mental condition of the declarant, the possibility of the declarant being tutored, etc. If on considering all these aspects, the Court comes to the conclusion that the dying declaration was, indeed, made and that, the version appearing therein is reliable and true, then-and only then-the dying declaration can be said to be confidence inspiring and may be acted upon even without any corroboration. 19. On an examination of the evidence of Digambar Mupde-Police Head Constable (PW-4) and Chandrakant Sude-Naib Tahsildar/Special Executive Magistrate (PW-6) in the light of the evidence of Dr. Bhushan Ubhale (PW-5) with respect to the time and manner of the recording of the said dying declarations, and the circumstances in which they were recorded, it becomes apparent that there are a number of obvious inconsistencies and contradictions. Digambar Mupde-Police Head Constable (PW-4) categorically states that the dying declaration (Exhibit-19) was recorded by him some time at about 12 to 12:30 p.m. It may be recalled, that he claims to have been in GHATI hospital for about 2 and half hours and going by his version, in any 11 cria277.11 case, the dying declaration was recorded by him before 2:30 p.m. In fact, at about 3 to 3:30 p.m, he went to Tahsildar's office and was there till 4:30 p.m. From there, he went to place of incident where he was till 6:45 p.m. He has categorically denied that he reached GHATI hospital at about 5 p.m. Now in the light of this evidence, the evidence of Dr. Bhushan Ubhale that a constable came to him at about 5:30 p.m. on 04.06.2008 cannot be accepted. The endorsement Exhibit-26 made on the record of dying declaration Exhibit-19 purports to have been made at 5:30 p.m., and it is quite likely that therefore Dr. Bhushan Ubhale is sticking to that time as the time of recording the statement. 20. Dr. Bhushan Ubhale (PW-5), though has certified the fitness of Shobha with respect to two dying declarations recorded on successive days, did not speak at all about the second dying declaration when he was first examined as a witness. In fact, at that time, to a categorical question as to `whether a similar endorsement as was made by him on Exhibit-19 had been made by him on any other document' asked to him, he gave a categorical answer in negative. It is further curious that when he was recalled for further examination-in-chief he did not remember about the first endorsement i.e. marked as Exhibit-26 on the document Exhibit-19. This time, he spoke only about the endorsement in connection with the dying declaration (Exhibit-33) recorded by the Naib Tahsildar/Special Executive Magistrate (PW-6). There also he is proved to be wrong with respect to his claim that the said endorsement about fitness of Shobha was made by him on the record of dying declaration made by Naib Tahsildar/Special Executive Magistrate. 21. Considering the serious infirmities in the evidence of Dr. Bhushan Ubhale (PW-5), it is doubtful whether this witness had really examined Shobha and found her to be fit. Since a time as 5.30 p.m. has been put by him in the 12 cria277.11 endorsement (Exhibit-27), it has to be believed that the said endorsement was made at 5.30 p.m. However, Shobha's statement was not recorded by Mupde- Police Head Constable (PW-4) at that time and as discussed earlier, the evidence indicates that it was recorded much before that and in any case before 2.30 p.m. Such type of discrepancy in the evidence would undoubtedly indicate that perhaps Shobha was not medically examined at all by Dr. Ubhale (PW-5); and in any case, the endorsement about Shobha being in a fit condition to make a statement was not based on the medical examination of Shobha, made at or about the time when the statement was recorded. Because both the witnesses are categorical on the time of recording of the statement of Shobha about Shobha having been examined medically just before making statement and even after completing the recording thereof, it follows that none of them can be relied upon either for accepting the aspect of Shobha's having been medically examined before her statement (Exhibit-19) was recorded. 22. The evidence in respect of the dying declaration recorded by Chadrakant Sude-S.E.M. /Naib Tahsildar (PW-6) is also not satisfactory. It has already been seen that Dr. Bhushan Ubhale (PW-5) claimed to have made his endorsement certifying Shobha to be in a fit state of mind on the statement of Shobha recorded by Chandrakant Sude-Naib Tahsildar/S.E.M. but that, actually it was not on her statement at all. It has been made on the document at Exhibit-31, which is a letter addressed to the Medical Officer, GHATI hospital by Shri Chandrakant Sude-Special Executive Magistrate/Naib Tahsildar (PW-6). This letter does not request the medical officer to ascertain whether Shobha was in a fit state of mind but seeks "permission to record dying declaration". Be that as it may, the endorsement by itself is not free from suspicion, in as much as, it purports to have been made at 11.15 a.m. (as that 13 cria277.11 time has been mentioned on the top of the endorsement) but the endorsement records that `patient was conscious oriented etc, during the period of `11.15 to 11.45'. The endorsement also claims that the statement was given by patient- Shobha-infront of person making endorsement i.e. Dr. Bhushan (PW-5). The infirmities in his evidence as discussed earlier are to be seen in the context of the fact that no case papers in respect of the examination of Shobha or the treatment given to her were produced before the trial Court and no satisfactory answer for the non-production thereof was given. Even otherwise, that he does not remember to have examined Shobha twice on successive days for ascertaining her fitness is itself sufficient to cast a doubt on his testimony. It would be difficult to believe that Dr. Bhushan would forget having examined the patient twice on successive dates, for ascertaining her fitness to make a statement, even when he was specifically questioned about it. It would be legitimate to infer that either he might not have examined Shobha, or his memory is rather weak; and in either case, his evidence cannot be relied upon. 23. Undoubtedly, the version of Shobha as reflected in the dying declarations Exhibit-19 and Exhibit-33 is quite consistent and mentions that the appellant had poured kerosene over her person and had set her on fire. However, whether she indeed made those statement and at any rate, whether she was in a fit state of mind when she made the said statement is certainly rendered doubtful in the light of the infirmities in the evidence of persons, who have recorded the said dying declarations and the medical officer, who certified about the mental fitness of Shobha when the statements were allegedly made, particularly because the intimation in respect of the medico legal case was admittedly, that Shobha had set herself on fire because of the quarrel between her and the appellant. The relevant communication (Exhibit-20) which has been tendered in evidence, shows that Shobha had stated that she had set 14 cria277.11 herself on fire due to the quarrel between her and her husband. Thus, Exhibit-20 speaks of the first dying declaration made by Shobha, which is to the effect that she set herself on fire. The contentions of Mr. Joydeep Chatterji, learned Advocate for the appellant is that this dying declaration of Shobha ought to be taken into consideration. 24. This aspect, namely, `that earlier Shobha had made a different statement as regards the cause of her death', was brought to the notice of the trial Court, but it was disregarded by the learned