1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.62 OF 2000 Joaquim Cosma Rodriques Appellant Vs. State of Maharashtra Respondent Ms.Rebecca Gonsalvez Smt.V.R.Bhosale, APP for State. Coram: B.H.Marlapalle & Smt.Roshan Dalvi,JJ. July 20 & 21, 2009. ORAL JUDGMENT (PER B.H.MARLAPALLE,J.) : 1. This Appeal arises from the order of conviction and sentence dated 27/1/2000 passed by the learned Addl. Sessions Judge, Greater Mumbai in Sessions Case No.513 of 1985. The appellant accused came to be convicted for the offence punishable under Section 302 of IPC and sentenced to suffer SI for life and to pay a fine of Rs.500/-, in default to suffer further 2 RI for 15 days. The accused appellant was on bail during trial but has been in custody after the impugned order of conviction and sentence was passed. His bail application was rejected by this Court on two occasions. 2. As per the prosecution case deceased Shehnaz was the wife of PW 4 – Mohd.Islam and both of them were residing in room no.5, J chawl Mukesh Mills compound along with other relations viz. PW 5 Shabnam, her husband and two other nephews of PW 4. The accused was occupying room no.4 i.e. the very next room occupied by the deceased along with her family and he was a very close friend of the family. The accused was staying with his mother and sister in room no.4 whereas PW 2 Anisunisa was occupying room no.3 of Mukesh Mill Compound (chawl no.2). As per the prosecution, after the male members of the family of the deceased had left her home and PW 5 was with her, the accused entered her home at about 9.30 a.m. on 14/3/1985 and asked her to follow him to the loft area so as to have sexual intercourse with her to which she refused and, therefore, he started beating her with a rubber 3 pipe. PW 5 Shabnam left the room and within a short time she saw flames of fire coming out of the said room. At 10.30 a.m. the accused went to the work place of PW 4 Mohd. Islam and informed him that his wife sustained burn injuries. At 10.45 a.m. on the same day the accused went to the house of PW 1 Daulatbi and informed her that the deceased had sustained burn injuries and the said Daulatbi was a relation of the deceased. PW 4 – Mohd. Islam came to his house, saw that his wife had sustained burn injuries and a van was called. Around this time PW 2 – Anisunisa, the next door neighbour came to the spot, saw that the victim was already in the ambulance along with her husband and at his request she accompanied them to the St. George’s hospital. The victim was admitted in Ward No.4 but on the way she made oral dying declaration that the accused had set her on fire. The police came on the scene but her dying declaration could not be recorded till about 5 p.m. and as per PW 7 PSI Pawar he got the intimation about 4.30 p.m. that the victim was conscious and was in a condition to make statement. He, therefore, recorded the statement of the victim between 5 to 5.30 p.m. on 14/3/1985 and registered the same as FIR (Exh.19). In the mean while PW 1 and PW 3 – Sayara visited St. George’s hospital and in the presence of PW 4 1, PW 2 and PW 3 the victim made one more oral dying declaration that she was set on fire by the accused in the morning when he entered the house at about 9.30 a.m. and when she refused to go with him to the loft for sexual intercourse. On the same day i.e. on 14/3/1985 PW 6 Dr. Rajwadkar, Special Executive Magistrate on receiving the intimation from the Colaba Police Station visited the St. George’s hospital. She went to ward no.4 at about 7.30 p.m. and recorded the dying declaration of the victim in question and answer form. The victim was under treatment from 14/3/1985 and succumbed to her injuries on 22nd March 1985 at about 9 p.m. The dead body was sent for post mortem which was conducted in the same hospital and thereafter it was handed over to PW 4 who conducted the last rites. The accused was taken in custody by the IO and on completion of investigation, charge-sheet came to be filed on 1/7/1985. Initially the FIR was registered for the offence punishable under Section 307 of IPC but on the death of the victim it was amended to Section 302 of IPC. AS the case was triable exclusively by the Sessions Court, the learned Metropolitan Magistrate committed the case on 27/9/1985. The charge was framed on 15/12/1999. 5 3. The prosecution examined in all seven witnesses. The entire case of the prosecution was based on circumstantial evidence. The learned Addl. Sessions Judge framed the following issue: 1. Is it proved that on 14.3.85 at about 10.30 a.m. in room no.5, J. Chawl, Mukesh Mill Compound, Colaba, the accused had committed murder of decd. Shehnaz by sprinkling kerosene and by setting her on fire? He held that the prosecution proved that the accused committed the murder of Shehnaz by sprinkling kerosene and by setting her on fire at about 10.30 a.m. on 14/3/1985 in Room No.5, J. Chawl, Mukesh Mill Compound, Colaba. 4. Ms.Rebecca Gonsalvez, the learned counsel for the appellant has taken us through the depositions of all the seven witnesses and submitted that the prosecution failed to establish the involvement of the accused in the alleged murder of Shehnaz. She submitted that none of the four dying declarations could be relied upon and each one of them 6 suffered from inherent improbabilities. As per her the accused was framed and put on trial. She submitted that there is no reliable evidence to prove beyond reasonable doubt that it was the accused alone who set Shehnaz on fire and as a result of which she died on 22/3/1985. 5. Smt.Bhosale, the learned APP on the other hand, has supported the order of conviction and sentence and prayed before us to confirm the same and dismiss the appeal. 6. We have noted from the record that the post mortem report was not placed on record and the doctor who conducted the post mortem was not examined. Along with an application dated 17/12/1999 submitted by the Special Public Prosecutor four documents were placed on record viz. (1) FIR dated 14/3/1985, (2) Panchanama dated 14/3/1985, (3) Medical certificate dated 4/7/1985 and (4) Death intimation card dated 23/3/1985. The Advocate for the accused filed his Say to the said application on 17/12/1999 thereby not admitting any of these documents. FIR dated 14/3/1985 came to be proved through the evidence of PW 7 Pawar but rest of the documents remained without being exhibited obviously because no doctor 7 was examined in support of the medical certificate or the death intimation card and surprisingly even the spot panchanama could not be exhibited as none of the two witnesses to the said panchanama were examined by the prosecution. Though the victim died on 22/3/1985, medical certificate came to be issued on 4/7/1985 and there was no explanation furnished about the delay caused in submitting the medical certificate. In the absence of the post mortem report and on account of the failure of the prosecution to examine the concerned Medical Officer, the prosecution failed to prove at the first instance that Shehnaz died on account of burn injuries. At the same time the prosecution failed to prove that Shehnaz died either an accidental death or the homicidal death on account of burn injuries. 7. Now coming to the oral dying declarations made to PW 2 at the first instance in the van leading to the hospital and subsequently to PW 1, PW 2 and PW 3 collectively in ward no.4 of St. George’s Hospital, it is pertinent to note that these oral dying declarations were purportedly made any time between 10.30 a.m. to 12.30 p.m. In contrast, PW 7 in his depositions before the trial Court stated that at about 11 a.m. on 14/3/1985 8 he had received a message on wireless that there was a fire in Mukesh chawl, Colaba and, therefore, he rushed to the place and there he came to know that a lady had received burn injuries and she was admitted to St. George’s hospital. He went to the hospital and came to know that the injured was not in a position to give statement. He then contacted the duty Constable attached to that hospital and at about 4.30 p.m. he received a telephone call from the duty constable informing him that the injured was conscious and was able to speak. He, therefore, went to the hospital, interrogated her and recorded her statement and registered the same as FIR (Exhibit 19). In addition PW 2 while in the witness box stated that when she went to the spot of incident, Shehnaz was lying in the ambulance and her husband was sitting by her side. At the request of the husband of Shehnaz, she accompanied them in the ambulance and on the way she enquired from Shehnaz as to how she was burnt. To this Shehnaz claimed to have replied “Jogi burnt her”. The accused was also called as Jogi / Jokhi. Now in the very first statement which was allegedly made in the presence of PW 4, the motive did not come out and she further stated that after some time PW 1 and PW 3 visited the hospital and she was waiting outside the ward. PW 3 Sayara 9 called her inside the ward and asked her to hear what she was saying and Shehnaz told them that Jokhi doused kerosene on her and set her on fire. In her cross-examination she admitted that she did not see Joki either near the ambulance or in the hospital and she had no occasion to talk to him about the said incident. She also admitted that she did not go inside the house of Shehnaz and Shehnaz had herself narrated the facts for the first time to her. The second oral dying declaration made to PW Nos.1, 2 and 3 is claimed to have been made after 12.30 p.m. on 14/3/1985. As PW 3 Sayara stated at about 12.30 p.m. one girl came to her house and told her that PW 1 Daulatbi had called her as Shehnaz was burnt and, therefore, she went to the house of PW 1 and together they went to St. George’s Hospital and came to know that Shehnaz was admitted in Ward No.4. They waited outside for some time and thereafter along with one more lady went inside. Shehnaz was lying on the bed. She was trying to speak something and they asked her as to what had happened and how she had sustained the burn injuries. Shehnaz replied that her neighbour Joki had asked her to perform sexual intercourse with her. As she refused, he beat her with a rubber pipe, inserted the pipe in her mouth, poured kerosene in her mouth, doused kerosene on her 10 person and set her on fire. It is, therefore, unbelievable that the deceased made two dying declarations when she was unconscious upto 4.30 p.m. on 14/3/1985. 8. We have also noted from the depositions of PW 4 Mohd. Islam that his statement was recorded by the police on 14/3/1985. In the said statement made to the police he had purportedly stated, “I do not know how my wife sustained burn injuries” and when he was in the witnesses box he was confronted with the said statement marked as “X” for identification to which he replied that he did not remember whether he had stated so to the police. It was not his case that he had stated so and the police did not record it. In his cross- examination he was asked whether he had stated to the police to which he replied, “In my presence police questioned Shehnaz in the Hospital and she stated that Jokhi had asked her to perform illicit act with him and as she refused he beat her, poured kerosene in her mouth and set her on fire.” He replied that he did not remember whether such a statement was made by her to the police. Obviously the testimony of PW 4 suffered from contradictions as well as improvisations even on the issue of so called oral dying declarations made to PW 2 at the first 11 instance and PW 1 to PW 3 subsequently on 14/3/1985 but before 4.30 p.m. None of these oral dying declarations could be relied upon by the Sessions Court in support of the prosecution case implicating the appellant. 9. Now coming to the written dying declarations firstly in the form of FIR (Exhibit 19) and subsequently Exhibit 17 recorded by PW 6 – Dr.Rajwadkar, Special Executive Magistrate, Dr.Rajwadkar in her depositions before the trial Court stated that at about 8 p.m. on 14/3/1985, she had reached the St. George’s hospital on receiving the intimation from the Colaba Police Station and she went to ward no.4 where the deceased was admitted. She had found the deceased to be mentally fit to make a statement and she had obtained the endorsement of Medical Officer on duty to that effect. She thereafter went on asking questions to the deceased in Hindi, she received the replies in Hindi and on translation she recorded the same in English. As per her the recorded dying declaration was forwarded to the Chief Metropolitan Magistrate and thereafter it was received by the Registrar (Sessions) in a sealed envelope which was opened in the Court during the trial. The witness stated that the dying declaration had the certificate issued by 12 the Medical Officer but we do not find any such certificate on the dying declaration. However, on record there is a separate certificate purportedly issued by the Medical Officer on duty at 8 p.m. on 14/3/1985. This certificate has not been exhibited nor the doctor who issued the said certificate was examined before the Sessions Court. The dying declaration also does not bear an endorsement that on its recording the contents of the dying declaration were explained to the deceased in Hindi and she had confirmed them to be recorded as she replied. The next written dying declaration is in the form of FIR Exhibit 19 and claimed to have been recorded by PW 7 Pawar between 5 to 5.30 p.m. on 14/3/1985. The said dying declaration bears the endorsement of a doctor stating that the patient was in a position to give valid statement. This endorsement is claimed to have been made at 5.30 p.m. on 14/3/1985. In this statement the deceased claimed to have stated “Then Joqui came in my room and asked me to accompany him to a loft in our home. I refused to do so. Over this he threatened me that he will burn me but I did not agree to accompany him. Then Joqui poured some kerosene in my mouth by force. He also sprinkled kerosene on my clothes. He then set fire to my clothes and ran away. I then shouted for help. On hearing my 13 shouts neighbouring people came there and extinguished fire by pouring water on my person....” The prosecution did not examine any neighbour to suggest that when the deceased was in flames they rushed to her house after hearing shouts, poured water on her so as to extinguish fire. The spot panchanama has not been exhibited and, therefore, there is nothing on record to show as to whether the pieces of burnt clothes on the person of the deceased were lying around in her room, any kerosene was seen sprinkled around or any kerosene can or rubber pipe was available in the house. None of these attending circumstances have been brought on record by the prosecution during trial. The prosecution also could not bring on record as to who had called ambulance, what time it reached the spot and how the fire brigade van reached the place. As per PW 4, the van reached the hospital at 12.00 to 12.30 p.m; whereas PW 7 stated that about 11 a.m. he received the intimation and posted the duty constable in the hospital. The deceased survived for about nine days i.e. from 14/3/1985 to 22/3/1985 and during this period she must have been treated in the St. George’s hospital. No details of medical treatment were placed on record. At some places it was claimed by the prosecution that the deceased sustained 60 per 14 cent burn injuries but at some places it is claimed that the deceased sustained 78 per cent burn injuries. The evidence thus placed on record by the prosecution does not inspire confidence regarding the complicity of the appellant in the incident, beyond doubt even on the basis of the circumstantial evidence and the prosecution case suffered right from the stage of medical evidence which was not brought before the Sessions Court even to show that the deceased died on account of burn injuries and it was a homicidal death. Ms.Gonsalvez rightly relied upon the decision in the case of State of Maharashtra Vs. Sanjay Rajhans [AIR 2005 SC 97] and more particularly para 18 and she submitted that the dying declarations either oral or recorded were not fit to be relied upon by the trial Court more so when PW 7 clearly stated before the trial Court that till 4.30 p.m. that the deceased was not in a condition to make any statement. In addition our attention was also drawn to Exhibit 19 where the deceased claimed to have stated that after she was rescued by the neighbours by extinguishing fire she fell unconscious and she did not remember anything till PW 7 recorded her statement. 10. We, therefore, hold that the prosecution failed to 15 establish its case against the appellant beyond reasonable doubt and the complicity of the appellant in the incident cannot be accepted. The evidence read as a whole did not support the case of the prosecution so as to establish that it was the appellant who set the deceased on fire and ran away between 9.30 to 10 a.m. on 14/3/1985. Hence this appeal succeeds and the same is hereby allowed. The order of conviction and sentence passed on 27/1/2000 in Sessions Case No.513 of 1985 is hereby quashed and set aside. The accused stands acquitted from the offence punishable under Section 302 of IPC. The accused be released forthwith unless he is required in some other case. 11. R. & P. along with the muddemal, if any, be returned to the Sessions Court. (Smt.Roshan Dalvi,J.) (B.H.Marlapalle,J.)