1 a1274.04 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1274 OF 2004 Ashok Machindra Kamble C.No.C/13897 presently confined at Yerwada Central Prison, Pune – 6. .. Appellant. Vs. The State of Maharashtra .. Respondents. Mr.Arfan Sait for the appellant. Mrs.Geeta P.Mulekar APP for the State. CORAM : D.B.BHOSALE & M.L.TAHALIYANI, JJ. DATED : 20TH AUGUST, 2011. ORAL JUDGMENT (PER D.B.BHOSALE, J.) 1. This appeal is directed against the judgment and order dated 5th May, 2004 rendered by the 5th Adhoc Additional Sessions Judge, Pune in Sessions Case No.163 of 2003 by which the appellant- accused has been convicted for the offence punishable under section 302 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for the life and to pay fine of Rs.1,000/- and in default to further undergo rigorous imprisonment for three months. The accused came to be arrested in connection with this offence on 23.3.2003 and since then he is behind the bar. S 2 a1274.04 2. The prosecution case in brief is as follows : the accused alongwith his wife – Shobha and four children were residing in Anand Nagar area at Pune. The deceased – Shobha used to earn her livelihood by collecting waste papers. According to the prosecution, the accused was doing nothing. It is alleged that four days prior to incident the accused had brought one woman by name Kusum in the house and on that count there was quarrel between the accused and the deceased, and that the deceased had driven Kusum out of the house. On that count, it is alleged that the accused was annoyed with the deceased, and on 23.2.2003 in the afternoon he again picked up quarrel and at 4 pm when Shobha was sleeping in the house, he sprinkled kerosene from the stove and set her on fire and fled. The deceased – Shobha came out of the house shouting for help, when her son – Vishal extinguished the fire. The deceased told P.W.1 – Nagarbai Shinde that her husband poured kerosene and set her ablaze. The deceased - Shobha was taken to hospital by the police. In the hospital her statement was recorded by Sunil More – P.W.3, the investigating officer. The statement of the deceased recorded by P.W.3 (Exhibit-13) was treated as an FIR and on the basis thereof the offence under section 302 came to be recorded at Wanowadi police station being C.R. No.38 of 2003. Initially the offence was registered under section 307 of IPC and after the deceased succumb to the injuries, it was converted into section 302 of IPC. The investigation was carried out by P.W.3 - Sunil More, and after completion thereof he filed charge-sheet against the accused in the court of J.M.F.C. 3 a1274.04 Cantonment Court, Pune. Since the offence was exclusively triable by the court of Sessions, the case was committed to the court of Sessions for trial. After the charge was framed against accused he pleaded not guilty. The defence propounded by the accused was of total denial. According to the accused, Shobha was addicted to liquor and since on the date of incident he had refused to pay any amount for liquor, she implicated him falsely. Thereby in defence, the accused suggested that Shobha committed suicide, and has falsely implicated the accused as assailant. 3. The trial Court convicted the accused on the basis of oral dying declarations made to P.W.1 – Nagarbai Shinde and Vidya Kamble – P.W.2, the daughter of the deceased, and so also the written dying declarations recorded by P.W.1 - Sunil More and P.W.4 – Shivaji Dharpure, the Judicial Magistrate, First Class, Cantonment Court, Pune, holding that all the dying declarations are consistent and prove beyond reasonable doubt the guilt of the accused. 4. We have heard learned counsel for the parties and with their assistance gone through the entire evidence placed on record by the prosecution. At the outset Mr.Arfan Sait, learned counsel for the accused fairly submitted that the dying declarations, verbal and written, are consistent, they were recorded after following the due procedure established by judicial pronouncements, the contents of the dying declarations also stand proved by P.W.3 – Sunil More and 4 a1274.04 P.W.4 – Shivaji Dharpure, the investigating officer and the Judicial Magistrate respectively. He, however, submitted that merely because the dying declarations are consistent and free from any infirmities they are not sufficient to hold an accused guilty. In other words, he submitted that merely because the contents of the dying declaration are proved does not necessarily mean that the contents are truthful and/or inspire confidence. He invited our attention to several circumstances and submitted that the dying declaration of Shobha is a product of imagination or vindictive, and does not inspire confidence. In support of this submission he invited our attention to the medical papers (Exhibit-27). The doctor had taken down the history given by the deceased as to the cause of burn injuries sustained by her. He submitted that she did not name the accused and she simply stated that her husband was in the house and that he did not make any attempt to save her. The presence of the husband according to learned counsel for the accused had not been proved by the prosecution beyond reasonable doubt. Moreover, he submitted that Vishal, the son of the deceased, who extinguished the fire was not examined by the prosecution, nor did the investigating officer record his statement under section 161 of the Code of Criminal Procedure. He further submitted that even the cause shown by the prosecution in the evidence of P.W.2 - Vidya Kamble that accused was annoyed since Kusum was driven out of the house by the deceased does not appear to be probable since, the incident of driving Kusum out of the house had occurred four days prior to the incident. 5 a1274.04 5. On the other hand learned APP invited our attention to the evidence of P.W.1 and P.W.2 to whom the oral dying declaration was made by the deceased and submitted that both the witnesses are consistent and their evidence also stands corroborated by written dying declaration recorded by P.W.3 and P.W.4. She submitted that merely because the deceased did not tell the doctor the cause of sustaining burn injuries while giving the history does not mean that she falsely implicated the accused. She submitted that there was no reason for Shobha to falsely implicate her husband. 6. It is now well settled that to prove the dying declaration the prosecution needs to bring it on record through a competent witness or it should come on record from proper custody and, once it is placed on record, the Court can admit and exhibit the same. However, mere production and marking of the dying declaration as exhibit cannot be held to be a proof of its contents. Therefore, the next stage is to prove the contents of the statement. The best person/witness to prove the contents of the statement, within the meaning of Section 32(1) of the Evidence Act, is its recorder. If the recorder of the statement appears before the Court as a witness and deposes that he recorded the said statement by following the proper procedure, that is to say, in the form of questions and answers and, as far as practicable, in the words of the maker of the statement/declaration, and that the maker was well oriented/in a fit 6 a1274.04 state of mind to make the declaration and if the declaration is signed by or thumb impression is put by the declarant in approval thereof, and was also signed by the Magistrate, in our opinion, the contents thereof would stand proved provided nothing is elicited in the cross examination so as to create doubt about its contents. 7. In criminal cases mere proving the contents of a dying declaration would not be sufficient and Courts require to further examine whether the statement was voluntary and it is truthful/trustworthy. In short, merely because the proper procedure was followed by the recorder of a dying declaration/statement, and he proves the contents thereof would not mean that the contents of the dying declaration are truthful/trustworthy, and voluntary to form the basis for conviction without corroboration. Whether to accept the dying declaration as a truthful evidence, and to convict the accused on the basis thereof is a matter of appreciation of evidence and the Court, where prosecution is relying solely on the dying declaration, has to be on guard that the statement of the deceased was not as a result of tutoring, prompting, vindictive or a product of imagination, apart from the satisfaction of the Court that the deceased was in a fit state of mind and that he had clear opportunity to observe and identify the accused. 8. In Uka Ram Vs. State of Rajasthan (2001) 5 SCC 254 the Supreme Court, after considering the principle on which the dying 7 a1274.04 declarations are admitted in evidence, which is based upon the legal maxim Nemo Moriturus Praesumitur Mentire i.e. a man will not meet his maker with a lie in his mouth, observed that it has always to be kept in mind that though a dying declaration is entitled to great weight, yet it is worthwhile to note that as the maker of the statement is not subjected to cross- examination, it is essential for the court to insist that dying declaration should be of such nature as to inspire full confidence of the court in its correctness. The court is obliged to rule out the possibility of the statement being the result of either tutoring/ prompting or vindictive or product of imagination. 9. Thus, in the present case evidence would have to be examined to ascertain whether the dying declarations, verbal and written, was vindictive or product of imagination as contended by learned counsel for the appellant. It is true that Mr.Shivaji Dharpure – P.W.4 followed the due procedure while recording the dying declaration. From perusal of his depositions and the dying declarations recorded by him, it is clear that the statement made by the deceased – Shobha was voluntary and that it was made in a fit state of mind. However, that by itself would not be sufficient to hold that whatever she stated about the accused and the act of the accused was truthful and it was not either product of imagination or vindictive. 10. It has come in the evidence that the accused had brought one Kusum at home, who according to the accused, was his cousin sister 8 a1274.04 and on that count there was quarrel with the deceased. Four days prior to the incident, Kusum was driven out of the house by the deceased. Similarly, it has also come on record that since the accused was unemployed there used to be frequent quarrels between the deceased and the accused. 11. On the date and the time of incident the deceased was sleeping. It is not clear from the evidence on record that the accused was also at home when the incident occurred. None of the witnesses examined by the prosecution stated that they had seen the accused in the house or fleeing from the scene of offence at the relevant time. It is true that medical papers (Exhibit-27) show that the deceased had told the doctor that the accused was at home at the relevant time and that he did not make any attempt to save her. She, however, did not disclose to the doctor, who poured kerosene and set her ablaze. No satisfactory explanation is offerred by the prosecution as to why the deceased did not tell the doctor that the accused poured kerosene and set her ablaze while giving history of the burn injuries sustained by her. The prosecution examined P.W.1 - Nagarbai Shinde. She asked the deceased as to how she sustained burn injuries. From her evidence and more particularly the admissions given in the cross examination it appears that she had seen Vishal, the son of Shobha, extinguishing the fire. Vishal was also present when P.W.1 enquired with Shobha as to how she sustained burn injuries. The prosecution however failed to examine Vishal, who could have stated what exactly 9 a1274.04 happened at the relevant time, who was responsible for the incident and whether the accused was present in the house. It is pertinent to note that the prosecution not only failed to examine Vishal, but the investigating officer did not even record his statement under section 161 of the Code of Criminal Procedure during investigation. This all creates doubt about the veracity of the oral statement of the deceased made to P.W.1. It creates doubt whether the accused was present at the relevant time. Why none of the family members of the accused/deceased, who was present in the house, was not examined by the prosecution. The oral dying declaration made to Nagarbai Shinde by Shobha as to the cause of her death does not inspire confidence. Merely because such statement was made by Shobha to Nagarbai - P.W.1 does not mean that it was truthful/trustworthy. If it was true, Shobha could have disclosed name of the accused as assailant when the doctor enquired about history of the burn injuries. Why she did not name the accused, is not explained by the prosecution by leading any cogent and convincing evidence. 12. We further examined the dying declarations in the light of the testimony of Vidya Kamble – P.W.2. She stated that when she went to the hospital she enquired with her mother as to how she sustained burn injuries, and according to this witness the deceased told her that since she had driven Kusum out of the house, the accused was annoyed and, therefore, he poured kerosene and set her ablaze. This disclosure by the deceased to Vidya Kamble – P.W.2 is not consistent 10 a1274.04 with what was stated to P.W.1 or to P.W.3 and P.W.4 who recorded her statement in writing. There is no reference in the evidence of Vidya Kamble - P.W.2 that the accused was annoyed with the deceased and, therefore, when the deceased was sleeping he poured kerosene and set her on fire. Similarly, there is nothing on record to show as to when P.W.2 went to hospital, whether the deceased was conscious, and was in a fit state of mind when oral dying declaration was made. Thus, these circumstances create doubt about veracity of the contents of dying declaration. The contents of the dying declaration, verbal as well as written, do not inspire confidence, and possibility of false implication by the deceased being vindictive cannot be ruled out. In view thereof, we are of the opinion, that the accused is entitled for benefit of doubt. Hence we pass the following order: Appeal is allowed. The order dated 5th May, 2004 convicting the appellant for the offence puishable under section 302 of IPC is set aside. The appellant-accused is acquitted. The jail authorities are directed to set the accused at liberty forthwith, if not required in any other case. (M.L.TAHALIYANI, J.) (D.B.BHOSALE, J.)