1 Cri.Appeal No.265 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 265 OF 2010 1. Dashrath s/o Raghunath Guthe, Age : 28 years, Occu.Agriculture, R/o Salegaon, Tq. Kalamnuri, District Hingoli 2. Raghunath Deobarao Guthe, Age : 55 years, Occu.Agriculture, R/o Salegaon, Tq. Kalamnuri, District Hingoli 3. Satyabhamabai w/o Raghunath Guthe, Age : 50 years, Occu.Agriculture, R/o Salegaon, Tq. Kalamnuri, District Hingoli ..APPELLANTS VERSUS * The State of Maharashtra ..RESPONDENT Mr S.C. Bora, Advocate with Mr A.B. Girase and Mr M.D. Gitte for the appellants; Mrs S.D. Shelke, Asstt. Public Prosecutor for the respondent CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 11th July, 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) 2 Cri.Appeal No.265 of 2010 The appellants, who stand convicted for an offence punishable under section 302 read with sec. 34 of the Indian Penal Code and sentenced to imprisonment for life and to each pay fine of Rs.2,500/-, in default of which to undergo further R.I. for six months and accused no.2, in addition being convicted for an offence punishable under section 509 of the Indian Penal Code and sentenced to S.I. for three months and fine of Rs.500/-, in default of which to undergo S.I. for one month, with a direction that the substantive sentences shall run concurrently, by the Ad hoc Additional Sessions Judge, Hingoli, by judgment dated 24.6.2010, in Sessions Trial No.20 of 2009, by this appeal question the correctness of their conviction and sentence. 2. Such of the facts, as are necessary for the decision of this appeal, may briefly be stated thus :- P.W.10 Police Head Constable Amarsingh Thakur, who was attached to the Vazirabad Police Station, Nanded, was on duty in the Police Chowky of the Civil Hospital at Nanded on 5.8.2008. The Medical Officer of the hospital had delivered an M.L.C. to P.W.10 Head Constable Thakur. The M.L.C. was in respect of admission of injured Vandana, wife of the original accused no.1 and daughter-in-law of original accused nos.2 and 3. P.W.10 Head Constable Thakur accordingly inquired from the Medical Officer about the condition of Vandana to give her statement. 3 Cri.Appeal No.265 of 2010 Upon the Medical Officer certifying that Vandana was in a fit condition to give her statement, P.W.10 Head Constable Thakur requested the relatives to go away from the ward and recorded the statement of Vandana. Thereafter a letter came to be addressed to the Special Judicial Magistrate for recording the dying declaration of Vandana. The aforesaid documents i.e. the statement/dying declaration recorded by P.W.10 Head Constable Thakur and the dying declaration recorded by P.W.12 Pundlik Nagorao Zunjare at Exh.56 were forwarded by him to the Kalamnuri police station along with the covering letter, dated 16.8.2008 at Exh.45. Vandana succumbed to her injuries on 16.8.2008 in the Civil Hospital at Nanded and thereafter the inquest panchnama came to be drawn by P.W.10 Head Constable Thakur at Exh.28 in the presence of panch witnesses. The aforesaid inquest panchnama was also forwarded by P.W.10 Head Constable Thakur to the Kalamnuri police station. P.W. 12 Pundlik Nagorao Zunjare, a Special Judicial Magistrate at Nanded, states about being informed on telephone by the police officer of the police chowky in the Government Medical College, Nanded about admission of Vandana with burns. He further states that he had also received a written communication at Exh.61. He, therefore, proceeded to the Burn Ward of the hospital and requested the Nurse on duty to call the Medical Officer. Accordingly, after arrival of the Medical Officer, P.W.12 Zunjare requested the Medical Officer to ascertain if Vandana was in a fit condition to give her statement. The Medical Officer gave his opinion in writing at Exh.56/A that Vandana was in a fit condition to give her 4 Cri.Appeal No.265 of 2010 statement. Statement of Vandana, therefore, came to be recorded. In the aforesaid statement of Vandana, which is a dying declaration at Exh. 56, Vandana states that on the previous day i.e. on 4.8.2008, her father- in-law accused no.2 had gone to the land for sowing cotton seeds. It appears that her father-in-law was bitten by a scorpion and was, therefore, in severe pain. She further stated that she had gone near the bed of her father-in-law to inquire about his welfare and her father-in-law had asked her to kiss him. She informed her father-in-law that she was born in a traditional family where there was no custom of kissing. Thereafter her father-in-law abused her and on the next day, i.e. on 5.8.2008 when she was lying on the cot after completing her work, the accused came near her and her father-in-law poured kerosene on her while her hands were held by her mother-in-law and her husband set her ablaze by striking a match stick. She further stated that she shouted and ran outside the house having sustained burns and fell down in the drainage. Her neighbours assembled on hearing her cries and thereafter her relatives took her to the Kalamnuri Hospital. She was thereafter referred to the Civil Hospital at Nanded. Thumb impression of Vandana came to be obtained on the statement at Exh.56 after the Medical Officer had endorsed that Vandana was conscious throughout the recording of the statement. Thereafter copies of the dying declaration were prepared and forwarded to the Chief Judicial Magistrate. 5 Cri.Appeal No.265 of 2010 3. P.W.9 Subhash Madhavrao Bhoyar, a P.S.I., who was attached to the Kalamnuri police station, upon receipt of the carbon copy of the dying declaration at Exh.56, directed the registration of the offence and accordingly an offence came to be registered on the basis of the dying declaration at Exh.56. On the carbon copy an endorsement is made at Exh.40. Thereafter he proceeded to the scene of the offence and in the presence of panchas drew the scene of the offence panchnama at Exh. 21. From the scene of the offence he seized a kerosene container of 15 Ltrs. and one shirt. The accused came to be arrested under the arrest panchnama at Exh.41. During custodial interrogation, accused no.1 Dashrath expressed his willingness to point out the place where the match box was hidden. Accordingly, his memorandum came to be recorded at Exh.34. The accused led the police and the panch to his house and produced a match stick which came to be seized and which is Article "C". Subsequently, accused no.2 & 3 came to be arrested. The seized property came to be referred to the Chemical Analyser along with the requisition. The report of the Chemical Analyser is at Exh.46. Further to the completion of investigation a charge-sheet against the appellants came to be filed. 4. On committal of the case to Court of Sessions, Trial Court vide Exh.16 framed charge against the appellants for offence punishable under section 302 read with sec. 34 and against accused no.2 for an offence punishable under section 354 of the Indian Penal Code and 504 6 Cri.Appeal No.265 of 2010 read with sec.34 of the Indian Penal Code against all the accused. The accused denied their guilt and claimed to be tried. Prosecution, in support of its case, examined twelve witnesses. The main plank of the prosecution case is the dying declaration at Exh.56 recorded by P.W.12, the Special Judicial Magistrate as well as the oral dying declarations made to her relatives by Vandana. The Trial Court found that the prosecution had proved the offence beyond reasonable doubt and accordingly convicted and sentenced the appellants. 5. Before we advert to the submissions advanced before us by Shri S.C. Bora, learned Counsel for the appellants and the learned Asstt. Public Prosecutor, it would be useful to refer to the evidence of the prosecution witnesses. 6. P.W.10 Head Constable Thakur states about recording of the statement of Vandana. The letter at Exh.44, which is a covering letter along with which P.W.10 Head Constable Thakur had sent the copy of the statement and the other documents also shows that a copy of the statement of Vandana was sent to the Kalamnuri police station. The charge-sheet filed by the Investigating Officer also shows that P.W.10 Head Constable Thakur has been cited as a witness in order to prove the statement of Vandana. Unfortunately the statement of Vandana was not tendered in evidence along with the charge-sheet. The charge-sheet was filed bereft of the statement of Vandana. During trial also, it appears that 7 Cri.Appeal No.265 of 2010 no steps had been taken by the prosecution for placing the statement of Vandana on record which, in law, would amount to a dying declaration admissible under section 32 (1) of the Evidence Act in the light of death of Vandana. The learned Asstt. Public Prosecutor has fairly stated upon perusal of the original record and proceedings, that statement of Vandana does not appear to have been filed by the prosecution. The index of documents filed with the charge-sheet also does not refer to any statement of Vandana being filed with the charge-sheet. It is, therefore, apparent that statement of Vandana, recorded by P.W.10 Head Constable Thakur, had been deliberately withheld by the prosecution for reasons best known to it. 7. In cross-examination P.W.10 Head Constable Thakur has admitted about recording of the statement of Vandana as well as sending of the statement of Vandana to police station Kalamnuri along with the covering letter at Exh.44. He has, however, denied the suggestion that Vandana had stated to him that she had committed suicide and, therefore, the statement was not produced by the prosecution. 8. P.W.12 Zunjare, a Special Judicial Magistrate has been examined to prove the dying declaration at Exh.56. Zunjare states about going to the Civil Hospital at Nanded and about requesting the Medical Officer to opine if Vandana was in a fit condition to give her statement. He states about the Medical Officer P.W.11 Dr. Ramprabhu Tidke endorsing on the 8 Cri.Appeal No.265 of 2010 dying declarations at Exhs.56/A and 56/B in respect of condition of Vandana. He then states about the statement recorded by him and deposes about the contents of the dying declaration. In cross- examination he was asked several questions relating to his appointment as the Special Judicial Magistrate. He has admitted that no formal training was given to him of the method of recording the dying declaration. It was suggested to him that since the hands of Vandana were burnt completely, the thumb impression which is obtained by him was not that of Vandana as the ridges were clear and sharp. He has denied the suggestion that he had scribed the dying declaration at the behest of the relatives. Nothing of substance has been elicited in the cross-examination of P.W.12 Special Judicial Magistrate Zunjare which would impel us to disbelieve the recording of the dying declaration at Exh.56 by him. 9. Dead body of deceased Vandana was referred for post mortem examination and post mortem came to be conducted by P.W.2 Dr. Shirin Kabiroddin Bandele. P.W.2 Dr.Shirin states that she had conducted the post mortem along with her colleague Dr. Puri. She states that Vandana had sustained 99% burn injuries. In cross-examination she has admitted that Vandana had sustained 100% burn injuries on her hands. She has admitted that while calculating the percentage of burns the rule of nine was applied. She was unable to state exactly if the ridges would appear to be sharp and clear in the event the thumb impression was obtained. 9 Cri.Appeal No.265 of 2010 She has also admitted that Vandana had sustained superficial to deep burns. 10. Mr Bora, learned Counsel for the appellants has urged before us that no reliance at all can be placed on the dying declaration at Exh.56 for the reason :- (i) That Vandana's hands were burnt and, therefore, P.W.12 Special Judicial Magistrate could not have obtained a clear thumb impression; (ii) The recitals of the dying declaration at Exh.56/A are in sharp contrast to the evidence of the relatives to whom oral dying declaration was made; (iii) The suspicious circumstances hovering over the recording of the dying declaration at Exh.56 should put the Court on guard in respect of the evidence of recording and this Court should, therefore, discard the dying declaration. It is also urged by Shri Bora, learned Counsel for the appellants that an adverse inference ought to be drawn against the prosecution for its failure to produce the dying declaration recorded by P.W.10 Head Constable Thakur, which is the dying declaration recorded first in point of time. The 10 Cri.Appeal No.265 of 2010 learned Asstt. Public Prosecutor has supported the findings recorded by the Trial Court. 11. P.W.10 Head Constable Thakur had undeniably recorded the statement of Vandana, which was a dying declaration recorded first in point of time. Undeniably also, P.W.10 Head Constable Thakur had forwarded the statement of Vandana to the Kalamnuri police station along with his covering letter at Exh.44. Undeniably also, Head Constable Thakur had been cited and examined as a witness in order to prove the statement recorded by him. Unfortunately, the statement of Vandana, though was in possession of the Investigating Officer, had not been filed along with the charge-sheet. The index of the documents filed along with the charge-sheet does not disclose that the dying declaration of Vandana recorded by P.W.10 Head Constable Thakur had been submitted to the Court. In cross-examination a pointed suggestion was given to P.W.10 Head Constable Thakur that deceased Vandana had stated to him that she had committed suicide. No doubt, the said suggestion was denied by P.W.10 Head Constable Thakur. However, even after examination of P.W.10 Head Constable Thakur, prosecution did not take any initiative at placing the statement of Vandana on record and getting it proved from P.W.10 Head Constable Thakur by re-calling him. In such circumstances, therefore, according to us, adverse inference against the prosecution is required to be drawn. It is, no doubt, true that there is no rule of law which states that the dying declaration recorded first in point of time 11 Cri.Appeal No.265 of 2010 should be preferred over the subsequent dying declarations. However, the earliest statement made by an injured who subsequently succumbs to the injuries, is an important piece of evidence. The earliest version would be a version untainted by any tutoring or persuasions. The earliest version, therefore, would normally reflect the true state-of-affairs and would offer a true explanation for the injuries. We hasten to add that it is not necessary that the earliest version would always to be free from tutoring. However, the earliest version of Vandana has been withheld from the scrutiny of the Court by the prosecution. The prosecution has not advanced any reasons as to why the earliest version of Vandana was not placed on record. The test is not so much as to whether the earliest version would be either corroborating the subsequent dying declaration or would be at variance with the subsequent dying declaration, the real test would be whether the ultimate decision of the Court is likely to be affected. In cases resting on multiple dying declarations the Courts have found that test to be applied for appreciating the multiple dying declarations is a test of uniformity or consistency. In the absence of the earliest dying declaration, which may be a dying declaration indicating that Vandana had committed suicide, would certainly enure to the benefit of the appellants/accused. In such circumstances, therefore, according to us adverse inference ought to be drawn against the prosecution that if it had produced the aforesaid dying declaration, the recitals in the dying declarations would not have been in conformity with the subsequent dying declaration recorded at Exh.56. We find that such an inference is 12 Cri.Appeal No.265 of 2010 also justifiably to be drawn in the light of the variance in the oral dying declarations and the recitals of the dying declaration at Exh.56. 12. A reference may usefully be made to the judgment of Supreme Court in Ram Das vs. State of Maharashtra, AIR 1977 Supreme Court 1164. In the said judgment the Supreme Court has observed :- "When a prosecution witness deposes that he had received a letter containing the alleged threat of murder given to the deceased and that letter is in possession of the Police but the prosecution did not produce the letter in Court in spite of the direction of the Court to produce it the only reasonable inference that can be drawn would be that the letter did not contain such a threat and the letter if produced would have falsified the witness to that extent." 13. A reference may also be made to the Division Bench judgment of this Court, to which one of us (P.V. Hardas, J.) was a member, in Prabhakar Wamanrao Salve vs. State of Maharashtra, 2006 ALL MR (Cri) 1274. The Division Bench at paragraph 20 has observed thus :- "According to us, suppression of a vital piece of evidence casts a serious doubt about the genuineness and truthfulness of the dying declarations at Exh.23 and Exh.34. It is not the duty of the Investigating Officer to bolster the prosecution case by 13 Cri.Appeal No.265 of 2010 suppressing the evidence but he should present before the Court an unalloyed truth." In that case also the prosecution had withheld the disclosure made by the injured therein to the Medical Officer, which was a statement of the injured first in the point of time. 14. We now propose to deal with the evidence of the relatives who have deposed about the oral dying declarations. P.W.4 Neelabai, aunt of deceased Vandana states about Vandana coming to the house of Digambar prior to the incident and informing her about appellant no.2 Raghunath arranging his bed near the bed of Vandana and asking Vandana to kiss him and also to permit him to kiss her. The oral dying declaration further states that when Vandana disclosed this fact to the other accused, the other accused told Vandana that she was defaming the family within half a month of the marriage. Neelabai further states that thereafter they told Vandana to go and cohabit with the accused and she should not discuss these things. She states that thereafter on the next day they received a telephone call about Vandana being admitted to the hospital and on going to the hospital and on inquiring from Vandana, Vandana told Neelabai that accused no.2 had poured kerosene on her while accused no.3 had caught her hands and accused no.1 had set her ablaze. Vandana further disclosed that as 14 Cri.Appeal No.265 of 2010 she had disclosed the behaviour of the accused no.2 she had been set ablaze. Neelabai further states that Vandana had told her that the appellant/accused had asked her to unzip his trousers and thereafter to allow accused no.2 to kiss Vandana. Certain answers have been elicited in the cross-examination, particularly the admission in paragraph 9 wherein Neelabai has admitted as true that Vandana was not in a position to talk. We have perused the vernacular deposition of Neelabai and Neelabai has denied the said suggestion. Neelabai has admitted in cross-examination that when she had questioned Vandana about the incident on the previous day, mother of Vandana was present along with Neelabai. She has denied the suggestion that Vandana had committed suicide as she was not allowed to go to the house of her parents. 15. P.W.5 Namdeo, father of deceased Vandana states about Vandana being married to accused no.1 about a year and nine months prior to the incident. He states about his wife informing him about the incident of the previous evening. He then states about receipt of the telephone call on the next day at about 1.30 p.m. about Vandana being admitted with burns and about going to the Government Hospital, Kalamnuri. He states about thereafter proceeding to the Civil Hospital, Nanded and on inquiry from Vandana in respect of the injuries Vandana had told him that she had been asleep on a cot in the morning at about 11.00 or so and accused no.3 had caught her hands while accused no.2 poured kerosene on her and accused no.1 set her ablaze. She also informed him about 15 Cri.Appeal No.265 of 2010 the incident of the previous evening about accused no.2 suffering from a bite of a scorpion and the accused no.2 asking her to unzip his trousers. He states that Vandana had told him that she was from a traditional family and, therefore, would not unzip his trousers. Accused no.2 thereafter abused Vandana. He has admitted that though Vandana had disclosed this incident to him, he had not lodged a complaint though he was aware of a Police Chowky in the premises of Nanded Hospital. He has admitted that statement of Vandana was recorded by the police after he had reached the hospital. He has further admitted that after about 2 to 4 days the police recorded his statement. His statement under section 161 of the Code of Criminal Procedure came to be recorded on 11.8.2008 and a supplementary statement on 24.8.2008. 16. Prosecution has examined P.W.6 Prakash, uncle of deceased Vandana. He states that his wife had informed him as to what Vandana had told her about the incident of the previous evening. He has further admitted that a request was made to the accused to send Vandana for the Nagpanchami festival but the accused had declined to send Vandana for the Panchami festival. He states that on the next day he was informed about the admission of Vandana in the hospital and thereafter had gone to the hospital at Nanded. He has admitted that he had talked to Vandana but does not remember what Vandana told him. He then stated that accused no.3 had caught her hands, while accused no.2 had poured kerosene on her and accused no.1 had set her ablaze. He has also 16 Cri.Appeal No.265 of 2010 stated that Vandana had ascribed the reason for commission of the offence by stating that as she had defamed the family she was set ablaze. In cross-examination he has admitted that he had not lodged a complaint with the police after Vandana had disclosed to him that the accused had set her ablaze. He has admitted that on sixth day of the incident Namdeo had lodged a complaint with the police. He has admitted that he had met the police but had not disclosed the incident to them. The statement of this witness during investigation came to be recorded on 24.8.2008. 17. The evidence of all these witnesses in respect of the oral dying declaration certainly does not inspire confidence of the Court for placing reliance on the same. First and foremost, there is variance in between the oral dying declaration and the written dying declaration at Exh.56. Apart from that, though Vandana had disclosed to them that it was the accused who had committed the offence, yet no report came to be lodged at the behest of these witnesses. The statements of these witnesses came to be recorded much after the death of deceased Vandana. If really Vandana had disclosed to them that it was the accused who had set her ablaze, we see no reason as to why these witnesses would maintain a stoic silence for such a long period. The dying declaration at Exh.56 in respect of the aforesaid incident also appears to us to be doubtful. There are no allegations whatsoever that Vandana was illtreated by any family members i.e. by any of the accused. There are no allegations that any 17 Cri.Appeal No.265 of 2010 demand for dowry was made and consequent thereto Vandana was illtreated. There is not even a whimper about the allegations against the mother-in-law or father-in-law about any illtreatment or uncouth behaviour towards Vandana. There are no allegations also that the father-in-law had kept an evil eye on Vandana after her marriage and had made any attempts at getting familiar with her. We, therefore, find it difficult to believe that after 3-1/2