sat 1 criminal appeal 215-2004 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 215 OF 2004 Mallappa Kankappa Lotavyankappa, ) at present lodged at Kolhapur ) Central Prison, r/o. Gurudev Naka, ) Bhayandar, Dist.Thane. ) ...Appellant vs. The State of Maharashtra ) at the instance of Kurla Police Station, ) vide CR No.280 of 2002 ) Sessions Case No.18 of 2003 ) ..Respondent Mrs.Pranali P. Kakade for the Appellant. Mrs.S.D. Shinde, APP for the State. CORAM : V.M. KANADE AND M.L. TAHALIYANI, JJ. DATED : NOVEMBER 8, 2011 JUDGMENT (PER M.L. TAHALIYANI, J.) :- 1 The appellant is aggrieved by the judgment and order passed by the Additional Sessions Judge, Greater Mumbai, on 29th September, 2003 in Sessions Case No. 18/2003. The appellant has been convicted by the said sat 2 criminal appeal 215-2004 judgment for the offence punishable under Section 302 of IPC and has been sentenced to suffer imprisonment for life and to pay a fine of Rs.1000/- and in default, to undergo further RI for a period of one year. 2 The appellant came to be prosecuted by the State of Maharashtra through Kurla Police Station after completion of investigation in Crime No.280/2002. 3 The said crime was registered on the complaint of complainant-Smt.Anjalamma Malappa Lotavyankatappa (hereinafter referred to as 'complainant/deceased'). The deceased was daughter of Smt.Shantamma (PW 1) and Mogullappa. She was married to the appellant. After the marriage, she had gone to stay with the appellant at his village for a period of about one month. Thereafter the deceased and husband both had come back to Mumbai. It is alleged that the deceased was not being treated properly by sat 3 criminal appeal 215-2004 the appellant. There were frequent complaints by the deceased made to her parents regarding ill-treatment she was subjected to by the appellant. Since the deceased was not keeping well, she was brought to her parents house (in a building under construction) where mother of the deceased was working as a labour. 4 It is a case of prosecution that at the night of incident i.e. on 14th and 15th September, 2002, the deceased and her husband were sleeping on the ground floor of the said building under construction. The parents of the deceased and their children were sleeping on the first floor. It is at about 2.30 a.m. that the mother of the deceased heard her daughter calling 'Amma, Amma'. When the PW 1 came down responding to the shouts, she had seen that her daughter was on fire. The PW 1 was informed by the deceased that she was set on fire by the appellant. The fire was extinguished by throwing water on the deceased and sat 4 criminal appeal 215-2004 thereafter, she was taken to Sion Hospital. The police reached the hospital and her statement was recorded. She had made allegations against the appellant in the police statement. On the basis of her statement, FIR was recorded for the offence punishable under Section 307 of IPC by police officer Mr.Ajay Kshirsagar (PW 6). It was stated by the deceased in her statement before the police that the appellant had poured kerosene on her and had set her on fire. The FIR (Exhibit 29) was recorded vide Crime No.280/2002 for the offence punishable u/s. 307 of IPC. The investigation continued. During the course of investigation, spot panchnama was drawn. Incriminating articles found on the spot were seized by the police. The deceased died on 15th September, 2002 at about 12 noon. Therefore, the offence was converted to Section 302 from Section 307 of IPC and further investigation continued. The appellant was arrested on the same day at about 7 p.m. After completion of investigation, charge sheet was filed in the court of sat 5 criminal appeal 215-2004 Magistrate for the offence punishable u/s. 302 of IPC. Since the offence is exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Mumbai. It was heard by the learned Additional Sessions Judge and was decided by the impugned judgment and order. 5 We have heard the learned Counsel for the appellant and the learned Additional PP for the State. 6 The learned Counsel for the appellant has submitted that the appellant was not present at the spot at the time of the alleged incident. It is submitted that the appellant was nowhere concerned with the alleged incident. The learned Counsel for the appellant has submitted that evidence clearly indicates that the relations between the deceased and the appellant were strained. It was brought to our notice that the place where the incident had occurred was not the regular place of residence of the appellant. The sat 6 criminal appeal 215-2004 appellant had come to his in-laws house on the earlier evening along with five persons (panchas) to resolve the dispute between the appellant and the deceased. It is a case of the prosecution that the appellant had stayed back at the house of the in-laws and the panch witnesses had gone back to Bhayander where the appellant had been staying. The learned Counsel for the appellant has submitted that there is no iota of evidence to prove that the appellant had stayed back with his in-laws and he was present in the premises at the time of the incident. It is submitted that considering the strained relations between the appellant and the deceased, possibility of deceased committing suicide could not be ruled out. At the same time, the possibility of the parents of the deceased implicating the appellant in a false case also could not be ruled out. Apart from this, it was also brought to our notice that there was no sufficient evidence to the satisfaction of the Court that the deceased was in a fit condition to make a coherent and correct statement. Our sat 7 criminal appeal 215-2004 attention was drawn to the evidence of PW 2 and it was submitted that it was the duty of the PW 2 to satisfy himself that the deceased was in a fit condition to make a statement before recording her statement. Since no such evidence has been adduced before the trial court, it was submitted, that the dying declaration of the deceased could not have been accepted to base the conviction. As such in brief, it is submitted that the evidence with regard to presence of the appellant at the time of alleged incident and the evidence with regard to recording of the dying declaration is too weak to rely upon to arrive at a judgment of conviction. 7 The learned Additional PP for the State, on the other hand, submitted that though the Special Executive Magistrate has not specifically stated that he had satisfied himself regarding the mental condition of the deceased, the evidence of the said witness inspires full confidence and there is nothing in his evidence which can create doubt about sat 8 criminal appeal 215-2004 the correctness of the testimony. The learned Additional PP has also submitted that the statement given by the deceased and the evidence of PW 1 that the appellant was sleeping with the deceased on the ground floor of the building on the night of 14th and 15th September, 2002 also cannot be ignored. 8 In view of the rival submissions made by the learned Counsel for the appellant and the learned Additional PP for the State, we have gone through the evidence of prosecution witnesses and the judgment of the learned trial court. As already stated, PW 1 is mother of the deceased. She has stated in her evidence that she had been receiving complaints from the deceased that the deceased was being assaulted by the appellant. She had intervened and had impressed upon both of them to behave properly. However there was no improvement. Ultimately, the deceased was brought to her parental house at Kurla, described herein sat 9 criminal appeal 215-2004 above. After about 4 to 5 days, the appellant had also visited the building under construction where PW 1 was staying with her family. 9 It is alleged that on the night of the alleged incident, the deceased and the appellant had been sleeping on the ground floor and PW 1, her husband and children were sleeping on the first floor of the said building. At about 2.30 a.m., PW 1 heard shouts of her daughter and came down and saw that her daughter was in flames. PW 1 was informed by the deceased that the deceased was set on fire by the appellant. After extinguishing the fire by means of water, the deceased was taken to Sion hospital. She was treated as Indoor patient and she died in the morning of 15th September, 2002. 10 It is admitted that 4 to 5 persons from the village of appellant had come alongwith the appellant to sat 10 criminal appeal 215-2004 resolve the dispute to the place where the PW 1 was staying with her family members. It is noted by the Court that none of these 4 to 5 persons have been examined by the prosecution to establish that the appellant had stayed back with the deceased on the night of 14th and 15th September, 2002. This is important particularly when the case of the appellant is that he had not stayed with the deceased at her parents house (in the building under construction) on the night of 14th and 15th September, 2002. It is also noted that when the PW 1 came down after hearing the shouts of the deceased, she had not seen the appellant at or near the spot. 11 We have carefully gone through the evidence of PW 2 who has stated that he was requested by the police to record the statement of the deceased. According to this witness, the deceased had stated before him that the accused had come to her parents house to fetch her back to Bhayander. He was accompanied by five persons. The said sat 11 criminal appeal 215-2004 five persons after discussing the issues involving the dispute between the deceased and the appellant had left the place. However, the appellant did not go back to Bhayander and he was with the deceased. It was stated by the deceased that the appellant had poured kerosene on her at about 2.30 a.m. and set her on fire. The deceased, therefore, rushed to her mother on the first floor. This witness has nowhere stated in his evidence that before recording the statement of deceased (Exhibit 11), he had satisfied himself that the deceased was in a fit and proper state of mind to give a correct and voluntary statement. Moreover, from the evidence of this witness, it does not appear that any Medical Officer was present at the time of recording of her statement. Exhibit 11 does not bear signature of any Medical Officer. As such the evidence of PW 2 read with Exhibit 11 does not in any manner indicate that an attempt was made by PW 2 to ascertain that the deceased was in a fit state of mind to give a correct statement. In our opinion, it is highly risky to rely sat 12 criminal appeal 215-2004 upon such evidence. The possibility of preparing false dying declaration of the deceased giving false statement at the instance of the parents of the deceased could not be ruled out in view of the dispute between the deceased and her parents on the one hand and the appellant on the other hand. 12 PW no.6 is the police officer who was the first to reach the hospital after admission of the deceased at the Sion Hospital. He consulted Dr.Sanjay Parab who gave his opinion that the deceased was in a condition to give her statement. The PW 6, therefore, recorded the statement of the deceased. The statement allegedly given by the deceased to PW 6 is more or less is similar to the statement stated to be recorded by the PW 2. This witness had taken certificate of the Medical Officer to the effect that the deceased was in a fit condition to make a statement. It is pertinent to note that the PW 2 had come after recording of statement by PW no.6. In fact, the statement recorded by PW no.6 was treated sat 13 criminal appeal 215-2004 as FIR and offence u/s. 307 of IPC was registered on the basis of the said statement. PW 2 Special Executive Magistrate was called after registration of the offence. In the circumstances, PW 2 had sufficient time to consult doctor and take his opinion with regard to the health of the deceased before recording her statement. It is not explained either by PW 2 or by Investigating Officer as to why such a step was not taken. The very purpose of recording the statement by an independent person like Special Executive Magistrate was frustrated. This has created a serious doubt in our mind about the genuineness of the prosecution evidence. As already stated, the case of the accused is that he had not stayed with the deceased and that he had gone back to Bhayander. The appellant has examined defence witness to establish that he had come back to Bhayander and that he had not stayed with the deceased. In our opinion, it is not necessary to go through the evidence of defence witness. The prosecution evidence itself suffers from serious infirmities and appears to sat 14 criminal appeal 215-2004 be of doubtful nature. The prosecution has not been able to explain as to why anyone of the said five persons has not been examined as prosecution witnesses. We are told by the learned Additional PP that the statements of those persons were recorded during the course of investigation. However, none of them have been examined before the Court nor any explanation is given for the same. In our considered opinion, therefore, this is a fit case where adverse inference for not examining the witness can be drawn. 13 The cause of death is not disputed. The Medical Officer has stated in his evidence that the deceased had died due to shock followed by burns. The contents of post mortem report had been admitted by the accused during the course of trial. The judgment of the learned trial court is mainly based on the evidence of PW 1, 2 and 6. The learned trial court has also taken support of evidence of PW 3. PW 3 was also one of the labours working in the same building. sat 15 criminal appeal 215-2004 She was staying on the first floor of the building under construction. She has stated that on the date of incident, the deceased and the appellant had slept on the ground floor. The parents of the deceased and their children were on the first floor. At about 2.00 a.m., the deceased had shouted 'Amma, Amma'. PW 3 had seen the deceased in burning condition. She, therefore, had poured water on the deceased. She had not stated in her examination-in-chief, initially, that the deceased was set on fire by the appellant. The learned Prosecutor was, therefore, permitted to ask a leading question. It is in answer to a leading question that this witness has stated that she was informed by the deceased that the appellant had set her on fire. It is noted that this witness had not herself seen the appellant. Statement made to this witness by the deceased has also come in reply to a leading question. In our opinion, this evidence is also a tainted evidence. The tainted evidence cannot corroborate another tainted piece of evidence. Therefore, the learned trial sat 16 criminal appeal 215-2004 court could not have relied upon this piece of evidence also. Considering the weak nature of evidence with regard to presence of the appellant at the spot and the dying declaration, we are of the view that the learned trial court should have given benefit of doubt to the appellant. It is well settled that the prosecution has to produce best evidence available to them. In the present case, the prosecution has failed to discharge its duty and has not been able to prove the charge beyond reasonable doubt. There are many loose ends described herein above which have not been tied by the prosecution during the course of trial nor any attempt was made by the learned trial court to call the witnesses whose evidence could have assisted the trial court to arrive at a just and proper decision. In the circumstances, we have come to the conclusion that the judgment and order of the learned trial court needs to be set aside and benefit of doubt needs to be given to the appellant. Hence, we pass the following order :- sat 17 criminal appeal 215-2004 : ORDER : I. Criminal Appeal is allowed. II. The judgment and order of the trial court is set aside and accused is acquitted of the offence punishable under Section 302 of the Indian Penal Code. III.The appellant/accused be released forthwith unless he is otherwise required in any other case. (M.L. TAHALIYANI, J.) (V.M. KANADE, J.)