1 J.cra.32.93 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 32 OF 1993 Nagbhushan Vyankatesh Goli .... Appellant VERSUS The State of Maharashtra. .... Respondent Shri. A. K. Suryawanshi for the Appellant Shri. Y. M. Nakhwa, APP for the Respondent State. CORAM: J. H. BHATIA, J. DATED: 20 th DECEMBER, 2010. P.C.: The Accused No. 1 – Appellant was convicted for the offences punishable under Sections 306, 498A of the Indian Penal Code and was sentenced to rigorous imprisonment for five years and one year, respectively by the learned 4 th Additional Sessions Judge, Solapur, in Sessions Case No. 121 of 1992. The Accused has challenged the conviction and sentence in this appeal. 2. The prosecution case in brief is that in 1978, Varlaxmi was SSM 2 J.cra.32.93 married to the Accused No. 1 Nagbhushan. At the time of marriage certain dowry, gold ornaments and other articles were given to her by her parents as per agreement. For about one year after her marriage she was treated well. Thereafter for one and the other trifle reason, her husband used to quarrel, abuse and also beat her. Accused Nos. 2 and 3, who are the parents of the Accused No. 1 also used to abuse and beat her and used to support the Accused No. 1. Her parents used to reside at Solapur. She was living with her husband, at Solapur. She used to pay visit to her parents after 8 to 15 days and used to tell her brother, mother and others about ill­treatment. Her mother used to persuade her to go back to husband's house every time. On some occasions, her mother Devkibai also requested accused persons not to ill­treat her. On 21 st January, 1992 at about 2.00 p.m., Varlaxmi had been to her mother and that time she told her mother that there was no purpose in living with her husband in view of the continuous ill­ treatment and beating by the husband. After that she went back to her SSM 3 J.cra.32.93 husband's house. On 23 rd January, 1992 in the afternoon she was taken to Civil Hospital, Solapur in burnt condition by her husband. At about 3.10 p.m., P. W. 5 ­ Mr. Kulkarni, Head Constable, who was in­charge of station diary, at Jail Road Police Station, Solapur, got a message that Varlaxmi had suffered burn injuries and was admitted in the Civil Hospital. He took entry in the station diary and gave a letter to P.W. 6 ­ PSI Jadhav to make enquiry. PSI Jadhav gave requisition to P.W.3 ­ Umesh Adam ­ the Special Executive Magistrate, to record the dying declaration of Varlaxmi. Accordingly, the Special Executive Magistrate went to the hospital and recorded her dying declaration wherein, she disclosed that during the previous night, as usual, for trifle reasons her husband had abused and beaten her and his parents were taking side of him. Being fed up, she had poured kerosene and immolated herself at about 2.00 p.m. on that day. On getting message of the incident, her mother P.W.1­ Devkibai and brother P.W. 2­ Ravindra also went to the hospital and she narrated the same story SSM 4 J.cra.32.93 before them. Thereafter, her mother Devkibai lodged a report on the basis of which Crime No. 14 of 1992 was registered. Almost immediately, after getting information of this incident, PSI Jadhav made a spot panchanama and seized the articles which were found there. During the following night, Varlaxmi died. As per the postmortem examination report, she had died due to shock and toxemia due to 100% burns. After investigation, chargesheet was filed and in due course, the case was committed to the Court of Sessions. 3. The accused persons pleaded not guilty. According to them, Varlaxmi had caught fire accidentally from stove while working in the room. Her husband and in­laws rushed to extinguish fire and then her husband immediately took her to Civil Hospital. According to them, Varlaxmi was unconscious because of the burn injuries and she had not made any dying declaration. SSM 5 J.cra.32.93 4. On behalf of prosecution in all, 6 witnesses were examined and some documents were placed on record. The Trial Court acquitted Accused Nos. 2 and 3, who were mother and father, respectively, of the Accused No. 1. However, Accused No. 1 was convicted and sentenced as stated above. 5. Heard the learned Counsel for the Accused / Appellant and learned APP for the State. Perused the record and proceedings of the Trial Court. 6. It is proved by the prosecution and also admitted on behalf of the accused that the Accused No. 1, i.e., the present Appellant and deceased were married in 1978 and they were blessed with two sons and one daughter. On 23 rd January, 1992, at about 3.00 p.m., she was admitted in the Civil Hospital, Solapur in burn condition and she died at about 00.30 a.m. in the following night. Postmortem report SSM 6 J.cra.32.93 Exhibit­13 reveals that she had died due to shock and toxemia due to 100% burns. After she was admitted in the hospital, immediately, the Head Constable Kulkarni, who was in­charge of the station diary at the police station got information; and he gave a letter Exhibit­27 to P.W.6­ PSI Jadhav to make enquiry. According to P.W. 6 ­ PSI Jadhav, he gave a requisition letter to P.W.3 ­ Umesh­ the Special Executive Magistrate, for recording dying declaration. Meanwhile, he proceeded to the spot of incident and recorded the spot panchanama Exhibit­10; and seized the articles found at the spot. The spot panchanama was also admitted on behalf of the Accused. 7. P.W. 1­ Devkibai is a mother of the deceased, however, she did not support the prosecution. According to her, Varlaxmi was living happily with her husband. She usued to visit her parent's house; and she never said anything against the accused persons. According to her, on the date of incident, she got information from one Chinu SSM 7 J.cra.32.93 Balage and, then, she alongwith her son P.W.2­ Ravindra went to the Civil Hospital where Varlaxmi was admitted. According to P.W.1­ Devkibai, Varlaxmi was not speaking and during the following night, she died. According to her, only once Varlaxmi had said that she was filling pain and Nurse be called. She did not say anything more. According to prosecution, Devkibai had lodged a report which was written by PSI Jadhav Exhibit­16. However, Devkibai denied that she had made any statement against the accused or Varlaxmi had told her about illtreatment at the house of her husband or about immolation of herself. P.W. 2­ Ravindra, also did not support the prosecution. According to him, after getting information of the incident, he went to the Civil Hospital. At that time Varlaxmi was unconscious. At about 5.30 p.m, she regained unconscious and was saying that she had pain. According to P.W. 2­Ravindra, Varlaxmi did not tell him the cause or the manner in which the incident had occurred. Ravindra was also declared hostile; and was confronted with his statement before the SSM 8 J.cra.32.93 police, wherein he had allegedly stated that Varlaxmi had made complaints about the ill­treatment by her husband and other relatives; and also that because of the said ill­treatment, she had immolated herself. Any how, these two witnesses did not support the prosecution case. 8. Therefore, according to P.W. 3­ Umesh ­ Special Executive Magistrate, at about 6.00 or 7.00 p.m. PSI Jadhav approached him with a request to record the statement of Varlaxmi who had sustained burn injuries. According to him, within half an hour he went to the Civil Hospital and enquired from P.W. 4 ­ Dr. Jitenra Chandurkar, who was on duty, about the condition of Varlaxmi. Dr. Chandurkar told him that five minutes before he had examined her and she was conscious and her statement could be recorded. After that P.W. 3­ Umesh went to the room where Varlaxmi was admitted. At that time, five to six persons were present near Varlaxmi and they were asked to go. After SSM 9 J.cra.32.93 that P.W. 3 – Umesh recorded her statement. At the time of recording the dying declaration. Dr. Chandurkar was not present as he was attending other patients' in the ward. After recording the dying declaration, P.W.3 – Umesh approached Dr. Chandurkar, who endorsed on the dying declaration that the patient was conscious and was fit to make a statement. According to him, he had written the dying declaration in triplicate with the help of two carbon papers. He also obtained thumb mark of Varlaxmi on the original as well as carbon copies of the dying declaration. According to him, the original dying declaration was retained by him while the carbon copy was handed over to the police. According to P.W. 3­ Umesh, the original dying declaration was not traceable and therefore it was not produced before the Court. As per the carbon copy of the dying declaration Exhibit­23, Varlaxmi had stated that during the previous night, as usual, her husband had abused and beaten her for trifle reasons. He always used to abuse and beat her for one or the other trifle reasons. SSM 10 J.cra.32.93 Her father­in­law and mother­in­law used to take side of her husband; and used to harass her and because of this, she was fed up and on that day at about 2.00 p.m. she had poured kerosene on her person and immolated herself. 9. The prosecution totally relies on the dying declaration of the deceased recorded by the P.W. 3­ Umesh­ the Special Executive Magistrate as the other material witnesses i.e. her mother and brother did not support the prosecution case. As stated above, the original dying declaration is not produced before the Court as it is said to be untraceable. Carbon copy of the same is produced which bears stamp and seal of P.W. 3 and his signature in original. According to him, he had put the stamp and seal on the original and carbon copies at his house; and thereafter he had given one copy to police. This copy shows that on the original, P.W. 4 – Dr. Chandurkar had endorsed thus: “patient is fully conscious and well oriented to give the SSM 11 J.cra.32.93 statement”. This endorsement was made at 6.50 p.m. Thus, the carbon copy of this endorsement can be seen on Exhibit­23. According to P.W. 3 – Umesh, he had obtained thumb mark of Varlaxmi on all the three copies. The thumb impression at Exhibit­23 appears like thumb impression of a normal person. As per the inquest panchanama at Exhibit­9 and the postmortem report at Exhibit­13, she had suffered 100% burns including upper limbs which include hands and fingures. In view of the fact that her hands and fingures were also completely burnt, her thumb impression on the dying declaration could not be like thumb impression of a normal person. Thumb impression at Exhibit­23 shows all the lines, ridges and curves in perfect order which could not be possible if thumb impression of a person having suffered 100% burns would have been obtained. 10. Admittedly, before recording the dying declaration, P. W. 4 ­ Dr. Chandurkar had not endorsed in writing that the patient was fully SSM 12 J.cra.32.93 conscious and fit to make a statement nor he was present at the time of recording dying declaration. P.W. 3­ Umesh approached Dr. Chandurkar after recording the dying declaration and obtained the endorsement on the same. During the cross examination, P.W. 4 – Dr. Chandurkar admitted that normally in such burn cases to alleviate pains, sedative drugs and injections are administered to the patient, but, in this case, no such sedative drugs and injections were administered to her. It is important to note that she was admitted in the Civil Hospital at about 3.00 p.m and the dying declaration appears to have been recorded after 6.30 p.m.. As per his evidence, for about three and half hours no pain killer and sedative drugs or injections were administered to her. However, this statement of Dr. Chandurkar is not corroborated by any record of the hospital because the medical case papers of Varlaxmi were not produced before the Court. Dr. Chandurkar made the statement orally on the basis of his memory. As the medical papers were not produced, he could not be effectively cross­examined about SSM 13 J.cra.32.93 the condition of Varlaxmi and about the drugs which might have been administered to her. In view of this, except the oral statement of Dr. Chandurkar, there is nothing to show that she was fully conscious and fit to make a statement. It was expected that he should have examined her when the Special Executive Magistrate approached him for recording the dying declaration; and should have certified accordingly. But, it appears that, according to Dr. Chandurkar he had already examined her and on the basis of that he allowed the Special Executive Magistrate to record the dying declaration. 11. It is a settled position of law that conviction can be based on dying declaration without any corroboration if dying declaration is correctly recorded and is truthful. In the present case, P. W. 3 – Umesh admitted that the deceased was speaking Marathi, but, on some occasions she was unable to express herself in Marathi and used to speak in Telgu. The dying declaration appears to be recorded in the SSM 14 J.cra.32.93 fluent Marathi language of the Special Executive Magistrate and not in the language of the deceased herself. He did not record the questions and answers nor he recorded the answers given by her in Marathi and Telgu in her own language. In view of this, it is difficult to positively hold that the dying declaration was correctly recorded by P. W. 3 – Umesh. If she was not comfortable with Marathi and was unable to express herself correctly in Marathi and sometimes she had spoken in Telgu, P. W. 3 – Umesh should have recorded statement of Varlaxmi in her own language. Whatever answers were given in her own language, they should have been recorded in Telgu and then he could have noted down the meaning of the same in Marathi. It appears that the dying declaration has not been recorded in the words of deceased Varlaxmi, but in the language of P.W.3­ Umesh. 12. The spot panchanama Exhibit­10 is a very vital document. The spot panchanama reveals that the deceased and her husband were SSM 15 J.cra.32.93 living in two rooms. The room, where the incident had occurred, was 8 x 7 ft. and its height was 7 ½ ft. from one side and 8 ½ ft. on the other side. In that room, different articles required for the kitchen and other household articles were lying. On the floor of the room, a stove was lying. At the distance of 1 ½ ft. from that stove, a partly burnt piece of Sari and a match box were lying. Near the West wall, there were pieces of burnt clothes. In a window of the room, a small Vati or Katori was lying. Below that, there was some kerosene. The ring over the burner of the stove was burnt and had fallen down. On the frame of the burner, burnt pieces of cloth were found stuck. The plastic can with its cork was also found partly burnt. All these articles were seized from the spot. It is material to note that the spot panchanama does not show that there was smell of kerosene on the floor or else where in the room, except the kerosene which was found at the bottom of the Vati in the window of the room. The spot panchanama also does not show that partly burnt clothes were smelling SSM 16 J.cra.32.93 of kerosene. If the deceased had poured kerosene and immolated herself, some kerosene must have spread on the floor; and therefore, there could be smell of kerosene in the room. Similarly, there must have been some smell of kerosene from the partly burnt clothes in the room. The Investigation Officer also did not send the articles seized from the place, and particularly partly burnt clothes for chemical analysis. The report of the chemical analysis could show whether residue of kerosene was or was not detected on the partly burnt clothes found in the room. The fact that some burnt pieces of clothes were found stuck to the burner of the stove goes to corroborate the plea of the accused that Varlaxmi had caught fire with the flame of the stove while working. The spot panchanama does not corroborate the dying declaration recorded by P.W. 3­ Umesh. 13. P. W. 1 – Devkibai and P. W. 2 – Ravindra, who are mother and brother respectively of the deceased, did not support SSM 17 J.cra.32.93 prosecution case. The spot panchanama does not rule out the possibilities of accidental fire and does not support the prosecution story of pouring kerosene and immolating herself. The medical case papers are not produced before the Court, and therefore, the Medical Officer could not be effectively cross examined by the accused about the condition of the deceased at the time of recording dying declaration. Not only this, the original dying declaration is also not produced before the Court. The Special Executive Magistrate also did not record the dying declaration in the language of the deceased. In view of these circumstances, it is not safe to place reliance on the dying declaration alone, particularly, when it does not find any corroboration. 14. In view of these circumstances, it must be held that the prosecution has failed to prove that the deceased Varlaxmi had immolated herself and committed suicide. As the dying declaration SSM 18 J.cra.32.93 does not appear to be a reliable evidence, the accused can not be convicted of the charges under Section 498A or 306 of the Indian Penal Code. In my opinion the learned Trial Court failed to appreciate the evidence properly and committed an error in convicting the accused. 15. For the aforesaid reasons, the Appeal is allowed. The impugned order of conviction and sentence is set aside. The Appellant / Accused No. 1 is, hereby, acquitted of the charges. (J. H. BHATIA J.) SSM