1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 42 OF 2008 1. Ramesh s/o Nilkanth Kale, Age 26 years, Occ. Agriculture, R/o Makhani, Taluka Purna, District Parbhani. 2. Choutra w/o Dadarao Jadhav, Age 41 years, Occ. Household, R/o Majlapur, Taluka Purna, District Parbhani. ... APPELLANTS (Original Accused Nos.1 and 6) VERSUS The State of Maharashtra (Copy to be served on Public Prosecutor, High Court of Judicature of Bombay, Bench at Aurangabad) ... RESPONDENT ..... Shri S.J. Salunke, Advocate for the appellants Shri K.J. Ghute Patil, APP for the respondent/State, assisted by Shri M.P. Kale, Advocate for the complainant. ..... W I T H CRIMINAL APPEAL NO. 31 OF 2008 Laxmibai w/o Limbaji Kale, Age 36 years, Occ. Household, R/o Makni, Taluka Purna, District Parbhani. ... APPELLANT (Original Accused No.5) VERSUS 2 The State of Maharashtra through Police Station Officer, Tadkalas, Taluka Purna, District Parbhani (Copy to be served on Public Prosecutor, High Court of Judicature of Bombay, Bench at Aurangabad) ... RESPONDENT ..... Shri S.B. Bhapkar, Advocate for the appellant Shri K.J. Ghute Patil, APP for the respondent/State. ..... CORAM : P.V.HARDAS & SHRIHARI P.DAVARE, JJ. DATED : 19th January, 2010 ORAL JUDGMENT : (Per P.V. Hardas, J.) 1. Criminal Appeal No.42/2008 has been filed by original accused No.1 and original accused No.6 while Criminal Appeal No.31/2008 has been filed by original accused No.5, who stand convicted for offence punishable under Section 302 read with Section 34 of the Indian Penal Code by the Sessions Judge, Parbhani, by judgment dated 17.1.2008 in Sessions Trial No.54/2007, sentencing the appellants to undergo imprisonment for life and to each pay fine of Rs.3000/-, in default of payment of fine, to undergo further R.I. for one year. The appellants, by the aforesaid appeals, question the correctness of their conviction and sentence. Since both the appeals arise against the same judgment, rendered by the trial Court in the same Sessions Trial, both the appeals 3 are being decided by this common judgment. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus: It appears that an M.L.C. came to be issued by the Medical Officer in respect of admission of injured Godavari in the Civil Hospital. Accordingly, a communication was addressed to the Naib Tahsildar P.W.1 Surekha Patwe with a request to record the dying declaration of injured Godavari. P.W.1 Surekha Patwe, accordingly, on receipt of the letter, visited the Civil Hospital, Parbhani on 19.9.2006 and contacted the Medical Officer on duty. The Medical Officer was requested to ascertain if injured Godavari was in a fit condition to give her statement. The Medical Officer i.e. P.W.8 Dr Sayyed Juned Ahmed examined Godavari and opined that she was in a fit condition to give her statement. P.W.1 Surekha thereafter started recording the statement of injured Godavari and completed the recording of the statemnet. The recording of the statement commenced at 4.30 a.m. and concluded at 5.00 a.m. The aforesaid staement of Godavari is at Exhibit 27. Subsequently, another statemnet of injured Godavari came to be recorded by P.W.10 P.I. Gautam Fasale at Exhibit 52 at 11.00 to 11.30 a.m. On the basis of the statement of Godavari at Exhibit 52, an offence vide Crime No.44/2006 under Sections 307, 498-A read with Section 34 of the Indian Penal Code came to be registered on 19.9.2006 vide Station Diary Entry No.22/2006 at 1.45 p.m. After registration of the offence, the investigation of the said crime was entrusted to P.W.10 P.I. Gautam Fasale. He accordingly visited the scene 4 of the offence which was shown to the investigating officer by one Vishnu, brother of injured Godavari. Accordingly, in the presence of two panchas, the scene of the offence panchanama came to be drawn at Exhibit 33 in the presence of P.W.5 Apparao. From the scene of the offence, an aluminium can of kerosene, burnt pieces of sari, match box came to be seized. P.W.3 Ashok had produced a small bottle containing poisoned milk which came to be seized in presence of panchas by seizure memorandum at Exhibit 34. P.W.10 P.I. Gautam Fasale recorded the statements of the witnesses and forwarded the seized articles to the Chemical Analyser. Upon completion of the investigation, charge sheet against the present appellants and other accused came to be filed. 3. On committal of the case to Court of Sessions, trial Court framed charge against the accused vide Exhibit 13-C for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and Section 498-A read with Section 34 of the Indian Penal Code. All the accused denied their guilt and claimed to be tried. Prosecution, in support of its case, examined 11 witnesses. The pivot of the present case revolves around the dying declaration Exhibit 27 recorded by P.W.1 Surekha, the dying declaration (Exhibit 52) recorded by P.W.10 P.I. Gautam Fasale as well as the disclosure at Exhibit 67 made by injured Godavari to P.W.11 Dr. Mokashe. The post mortem came to be conducted on the dead body of deceased Godavari who had succumbed to her injuries on 23.9.2006, by P.W.7 Dr. Baburao Doiphode and the post mortem report is at Exhibit 38. 5 4. Before we advert to the submissions advanced before us by Shri S.J. Salunke, learned counsel for the appellants and Shri S.B. Bhapkar, learned counsel for the appellant appearing in Criminal Appeal No.31/2008 and the learned A.P.P. Shri K.J. Ghute Patil who represents the State, it would be useful to refer to the evidence of the prosecution witnesses. 5. P.W.1 Surekha states about proceeding to the Civil Hospital at Parbhani and recording the statement of injured Godavari at Exhibit 27 after the fitness of Godavari was certified by the Medical Officer i.e. P.W.8 Dr. Sayyed Juned Ahmed Unfortunately, P.W.1 Surekha had not deposed about the contents of the statement at Exhibit 27. The staement at Exhibit 27 implicates the present appellants and one Limbaji, who has been acquitted. The statement at Exhibit 27 states that, after Godavari was brought home for the Mahalaxmi festival, some poisonous substance was attempted to be administered to her in milk. However, on account of her cries, the neighbours had gathered and, therefore, the attempt was foiled. She states that, on the day of the incident at about 12.00 p.m., accused No.5 Laxmibai and accused No.6 Choutra had held her hands while her husband accused No.1 had poured kerosene and set her ablaze. She states that, she had poured water on herself and had rushed outside. Hearing her cries, the neighbours had gathered and her uncle P.W.3 Ashok then had admitted her in the hospital. 6. In the dying declaration at Exhibit 52, recorded by P.W.10 P.I. Gautam Fasale, injured Godavari had stated that on account of her dark 6 complexion, the accused was not willing to reside with her. According to her, an amount of Rs.2 Lacs was offered to her father by the accused in order to severe the matrimonial ties. Godavari further states that she had returned back to her husband’s house and poison was attempted to be administered to her, but on account of her cries and on account of the neighbours who had gathered there, the attempt was foiled. She further states that, after taking her dinner, she had slept and at about 11.00 p.m., accused Nos.5 and 6 had held her hands and legs while her brother-in-law Limbaji had brought the kerosene which was poured on her by her husband accused No.1 Ramesh and Godavari was set ablaze. She further states that when she had attempted to cry for help, accused Limbaji had gagged her mouth. She states that, her relatives and neighbours had admitted her in the hospital. 7. Prosecution has examined P.W.9 Dr. Shilpa Jethalia, the Medical Officer who had ascertained the condition of Godavari at the time of recording of the dying declaration at Exhibit 52. P.W.9 Dr. Jethlia initially stated in her examination-in-chief about being called upon to ascertain the condition of injured Godavari at the time of recording of the dying declaration, but in her cross-examination, she admitted that the police had met her in the casualty ward and told her that statement was to be recorded and the police officer requested her to sign on it and on his request she signed on the endorsement. She has further admitted in the cross-examination as true that she was not present while the dying declaration at Exhibit 52 was being recorded. 7 8. Shri Salunke, learned counsel for the appellants and Shri Bhapkar, learned counsel for the appellant in the companion Criminal Appeal, have urged before us that the two written dying declarations at Exhibit 27 and at Exhibit 52 are inadmissible in evidence and cannot be relied upon. It is urged by learned counsel for the appellants that neither P.W.1 Surekha nor P.W.10 Gautam Fasale have proved the contents of the dying declarations. It is also urged before us that the medical evidence of P.W.9 Dr. Jethlia seals the fate of dying declaration at Exhibit 52 inasmuch as it is extremely doubtful if Dr. Jethlia was present during the recording of the dying declaration and had actually examined injured Godavari prior to the recording of the dying declaration. The learned A.P.P. submits that, despite the inconsistency in the recording of the dying declarations, the dying declarations inspire the confidence of the Court for its acceptance. 9. Reference in this behalf may usefully be made to the judgment of this Court in Deorao s/o Sonbaji Bhalerao & Anr. Vs. State of Maharashtra (2008 ALL MR (Cri) 1921 and Jivan Tulsiram Dhavali & Anr. Vs. State of Maharashtra (2008 ALL MR (Cri) 2018). The Division Bench in the aforesaid judgments has held that if the contents of the dying declarations are not deposed to by the witness, it cannot be said that the dying declaration stands proved. In the present case, neither P.W.1 Surekha nor P.W.10 Gautam Fasale have deposed about what Godavari told them. All that they state is about the recording of the statement at Exhibit 27 and exhibit 52 without deposing about the contents of the aforesaid statement. Further, the dying declarations at Exhibit 27 and 8 Exhibit 52 are rendered valueless in the light of the evidence of P.W.11 Dr. Mokashe who in no uncertain terms states that upon admission of Godavari in hospital, pathedin injection had been given to her. In cross- examination, he has admitted that the effect of pathedin injection lasts for six hours and pathedin injection is a sedative. In re-examination on behalf of the prosecution, he has admitted that it is not a rule that all patients remain unconscious during that period. According to him, the peak period of pathedin injection lasts for about 1 to 2 hours and thereafter the effects start decreasing. In the present case, unfortunately there is no evidence as to what was the state of Godavari after the administration of pathedin injection. Godavari had been admitted in the hospital at about 11.45 a.m. and if the evidence of P.W.1 Dr. Mokashe is to be accepted, pathedin injection came to be administered to her. Thereafter, when the dying declaration at Exhibit 27 came to be recorded, she was under influence of the pathedin injection. In respect of dying declaration at Exhibit 52, as pointed out by us above, the contents are deposed to by P.W.10 P.I. Gautam Fasale and the Medical Officer i.e. P.W.9 Dr. Jethlia does not satisfactorily establish that injured Godavari was in a fit condition to give her statement. In that light of the matter, therefore, according to us, no reliance whatsoever can be placed on the two dying declarations at Exhibit 27 and Exhibit 52. 10. This then takes us to the oral dying declaration alleged to have been made to P.W.2 Narhari. Since the accused have been acquitted in respect of an offence punishable under Section 498-A of the Indian Penal Code and as the State has not filed any appeal against acquittal in respect 9 of acquittal under Section 498-A of the Indian Penal Code, we do not advert to the evidence in respect of the charge under Section 498-A of the Indian Penal Code. Narhari states about having learnt about the accused attempting to administer poison to Godavari. In respect of the incident, he states that, after he was informed about the attempt at administering poison to Godavari, he had gone to the Police Station and was about to lodge the report, but the accused assured him that an incident of this nature would not be repeated in future and, therefore, relying upon the assurance, he did not lodge the report. He then states that, on returning back from the Police Station, he was in his agricultural field. A person came and informed him in his agricultural field that his daughter Godavari had been burnt by the members of her family. He states that he accordingly went to the house of Godavari and Godavari informed him that while she was sleeping, her legs and hads had been held by accused Nos. 5 and 6. The elder brother of her husband namely Limbaji had gagged her while accused No.1, her husband poured kerosene on her and set her ablaze. Godavari further informed him that at the time of incident, her father-in-law and mother-in-law were standing near the door. Godavari further states that all accused fled from the scene and Godavari was taken in an autorickshaw by her brother Vishnu and others to the hospital. There is no fruitful cross-examination in respect of Narhari going to Police Station and about the accused assuring him that an incident of that nature i.e. an attempt at administering poison to Godavari, would not be repeated. 11. According to us, not much reliance can be placed on the oral dying declaration made by Godavari to P.W.2 Narhari as evidence of P.W. 10 3 Ashok discloses that P.W.2 Narhari had not come to the house of Godavari but had come to the hospital. Narhari claims to have gone to the house of Godavari and about Godavari disclosing the incident to him. He does not state about any disclosure made by Godavari in the hospital. In that light of the matter, according to us, no reliance whatsoever can be placed upon the oral dying declaration alleged to have been made by deceased Godavari to her father P.W.2 Narhari. 12. P.W.3 Ashok and P.W.4 Indubai both claim that Godavari had disclosed the incident to them while Godavari was being taken in an autorickshaw to the Civil Hospital at Parbhani. P.W.2 Narhari states that Godavari had informed them that accused Nos.5 and 6 had held her hands and legs while Limbaji had gagged her mouth and her husband accused No.1 Ramesh had poured kerosene and had set her ablaze. The alleged disclosure is said to have been made prior to the admission of Godavari in the hospital. Both the witnesses in no uncertain terms have admitted that they had not reported the matter to the Police nor had they reported the matter to the Police Outpost in the hospital. Both these witnesses claim to have returned back to the house without disclosing this incident to anyone. The criticism of the learned counsels for the appellants that the conduct of these witnesses is wholly unnatural, cannot be said to be without any basis. We have meticulously examined the evidence of these witnesses and we find that no reliance whatsoever can be placed on the oral dying declaration made by deceased Godavari to P.W.3 Ashok and P.W.4 Indubai. 11 13. The first dying declaration recorded in point of time is the dying declaration at Exhibit 67, made to P.W.11 Dr. Mokashe. The aforesaid statement of Godavari has been recorded in the medical case papers at the time of admission of Godavari in the hospital. P.W.1 Dr. Mokashe has been examined by the prosecution, who has proved the contents of the statement made by Godavari. According to P.W.11 Dr. Mokashe, on admission Godavari had stated that she had sustained burns on account of pouring of kerosene by her husband and by the mother and father of her husband. As pointed out by us above, P.W.11 Dr. Mokashe has been cross-examined by the accused in respect of the recording of the dying declaration at Exhibit 67. Apart from the solitary question which was put to Dr. Mokashe in respect of the recording of the dying declaration, there is no effective cross-examination of Dr. Mokashe to disbelieve that injured Godavari had informed him that she had been set ablaze by her husband accused No.1 and his parents. The solitary question which was put to Dr. Mokashe was whether he had examined Godavari prior to recording her statement in the hospital. Apart from this, as pointed out by us above, there is no cross-examination in respect of the disclosure. According to us, at the close of the cross-examination, P.W.11 Dr. Mokashe has emerged as a truthful witness in respect of the recording of dying declaration of injured Godavari at Exhibit 67. It would be important to remember that Exhibit 67 was the disclosure made by Godavari which was first in point of time. However, the subsequent dying declarations obviously have been improved upon, may be at the behest of her relatives, who may have tutored her. The fact of the matter is that the two written dying declarations at Exhibit 27 and Exhibit 52 and the oral dying 12 declarations made to P.W.2 Narhari, P.W.3 Ashok and P.W.4 Indubai are in sharp contradiction to the disclosure made by Godavari at Exhibit 67. The evidence of P.W.3 Ashok and P.W.4 Indubai clearly indicates that the accused were present in the house while deceased Godaxvari was in flames and the flames came to be extinguished by the prosecution witnesses. The witnesses state that thereafter the accused fled from the scene of the offence. There is no evidence to indicate that after admission of Godavari in the hospital on 19.9.2006 and till her death on 23.9.2006 any of the accused had shown the slightest concern at visiting the hospital and enquiring about the welfare of Godavari. Be that as it may. The evidence of P.W.11 Dr. Mokashe clearly establishes that Godavari had disclosed to him that it was accused No.1 and his parents who had set her ablaze. The other dying declarations, for the reasons which we have ascribed above, are wholly unreliable. Implicit reliance, therefore, can be placed on the disclosure made by Godavari at Exhibit 67. Parents of accused No.1 i.e. original accused Nos.2 and 3 were acquitted by the trial Court. The State has not preferred any appeal against their acquittal. In that light of the matter, therefore, though we have held the dying declaration at Exhibit 67 to be a confidence inspiring piece of evidence, accused No.1 alone would be liable to be convicted on the basis of the aforesaid statement at Exhibit 67. The appeal filed by original accused Nos.5 and 6, therefore, will have to be allowed and benefit of doubt will have to be extended to accused Nos.5 and 6. 14. Accordingly, Criminal Appeal No.42/2008 is partly allowed. The conviction and sentence of original accused No.6 Choutra w/o 13 Dadarao Jadhav is hereby quashed and set aside and she is acquitted of the offence with which she was charged and convicted. Fine, if paid by original accused No.6 Choutra be refunded to her. Since the accused No. 6 Choutra is on bail, her bail bonds stand cancelled. The appeal insofar as it relates to the conviction of original accused No.1 Ramesh s/o Nilkanth Kale is dismissed, confirming his conviction and sentence. Criminal Appeal No.31/2008 is allowed and conviction and sentence of appellant Laxmibai w/o Limbaji Kale (original accused No.5) is hereby quashed and set aside and she is acquitted of the offence with which she was charged and convicted. Fine, if paid by Laxmibai, be refunded to her. Since Laxmibai is on bail, her bail bonds stand cancelled. (SHRIHARI P. DAVARE, J.) (P.V.HARDAS, J.)