: 1 : IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPEAL NO.695 OF 1999 APPEAL NO.695 OF 1999 APPEAL NO.695 OF 1999 1. Jackie @ Sultana Ashok Daryani R/o.S.T. Stand Zopadpatti, Manmad, at present in Jail 2. Suman Arun Mahale, S.T. Stand Zopadpatti, Manmad ...Appellants V/s. State of Maharashtra, thru’ P.I. of Manmad Police Station ...Respondent Mrs.Sharmila Kaushik, Advocate, for the Appellants. Mrs.M.M. Deshmukh, APP, for the Respondent. CORAM CORAM CORAM : J.N. PATEL & : J.N. PATEL & : J.N. PATEL & A.A. A.A. A.A. SAYED, JJ. SAYED, JJ. SAYED, JJ. DATE DATE DATE : 12TH APRIL, 2007. : 12TH APRIL, 2007. : 12TH APRIL, 2007. ORAL ORAL ORAL JUDGMENT : [ Per A.A. Sayed, J. ] JUDGMENT : [ Per A.A. Sayed, J. ] JUDGMENT : [ Per A.A. Sayed, J. ] 1. The above Appeal is preferred against a judgment and order dated 17.11.1999 of conviction, passed by the Additional Sessions Judge, Malegaon in Sessions Case No.11 of 1996, sentencing the Appellants to life imprisonment for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and also to pay fine of Rs.1,000/- each and in default to suffer rigorous imprisonment for one month. 2. The Appellant Nos.1 and 2 in the above Appeal : 2 : were the Accused Nos.1 and 2 in the Trial Court. The Appellant No.2 Suman Arun Mahale died some time in the year 2000 in custody during the pendency of the Appeal, as evidenced by the Medical Certificate produced by the learned APP for the State. The above Appeal, in so far as Appellant No.2 is concerned, therefore abates. 3. The case of the prosecution in brief is thus - The victim Vandana Ratan Gaikwad, hereinafter referred to as "the deceased", was residing in slum area near S.T. Stand, Manmad. On 28.09.1995 the deceased was found in burnt condition in front of her hut. The deceased was residing alongwith her paramour Ratan Gaikwad (PW-2) and one minor daughter Vanita (PW-1). The deceased was carrying on the profession of prostitution. Accused Nos.1 and 2 were also in the same profession i.e. prostitution and they were residing in a hut opposite to that of the deceased. There were frequent quarrels between the deceased and Accused No.1 and 2 on account of professional rivalry. 4. On 28.09.1995 between 8.00 p.m. and 9.00 p.m. the Accused Nos.1 and 2, in furtherance of their common intention, poured kerosene on the person of the deceased and set her ablaze in front of her house. The daughter of the deceased i.e. Vanita(PW-1), who was attending a programme at the house of one Zubeda in the neighbourhood, came back to the house and found her : 3 : mother in burnt condition lying in front of the house. The deceased told her daughter, Vanita (PW1), that the Appellants/ the Accused persons had poured kerosene on her and set her on fire (1st oral dying declaration). Vanita (PW-1) thereafter went to her father Ratan (PW-2), who was working as a waiter in a hotel nearby belonging to one Balu. Ratan (PW-2) was the paramour of the deceased and father of Vanita (PW-1) and was residing alongwith the deceased. Thereafter Ratan (PW-2) and Vanita (PW-1) rushed to the house. The deceased told Ratan (PW-2) that the Accused persons had come and poured kerosene on her and set her ablaze and fled away (2nd oral dying declaration). Ratan (PW-2) then carried the deceased in a autorikshaw to the Rural Hospital, Manmad and admitted her in the said hospital in the intervening night of 28.9.1995 and 29.9.1995 at about 12:30 a.m. 5. The deceased was conscious when she was brought to the hospital. The deceased gave the history for the purposes of medical case record, stating that accused persons had poured kerosene on her person and set her on fire. One Dr.Lalchand Laxman Jadhav (PW-3), Medical Officer, Rural Hospital, Manmad, examined the deceased and also recorded the burn injuries in the medical case record and treated the deceased and also informed the police of City Police Station, Manmad. Special Executive Magistrate one Mr.Sadashiv Shivram : 4 : Shinde (PW-4) came to the hospital and recorded the dying declaration (1st recorded dying declaration) of the deceased at the Rural Hospital at Manmad. The police officer of City Police Station, Manmad, thereafter, registered an offence under Section 307 read with section 34 of the Indian Penal Code vide C.R. No.16 of 1995 on the basis of the dying declaration given by the deceased recorded by the said Special Executive Magistrate. 6. The deceased, on the advise of the Doctor at the Rural Hospital at Manmad, was shifted to the Civil Hospital, Nasik, on 30.09.1995. At the Civil Hospital at Nasik, the deceased was examined by one Dr.Haribhau Yeshwantrao Gawade (PW-5). The deceased was conscious at that time and was in a position to talk. Upon a letter of request by the police, Special Judicial Magistrate, one Arun Omkar Bhavsar (PW-6), came to the Government Hospital, Nasik and recorded the dying declaration (2nd recorded dying declaration) of the deceased at about 11 p.m. on 30.9.1995. In the meantime the investigation officer recorded the statements of the witnesses and carried out a spot panchanama and arrested the accused persons and seized the incriminating articles viz. one stove of kerosene, burnt pieces of saree and petticoat smelling of kerosene, which were sent to the Chemical Analyser. The deceased ultimately succumbed to her injuries at : 5 : the Civil Hospital at Nasik on 9.10.1995 i.e. after a period of about 11 days from the date of the incident. The inquest panchanama was carried out and the body of the deceased was sent for post mortem. Upon the death of the deceased the police altered the offence to Section 302 instead of Section 307 of the Indian Penal Code. 7. After the entire investigation, a charge-sheet came to be filed against the accused persons. The case was thereafter committed to the Court of Sessions by the Learned Judicial Magistrate First Class and the accused persons pleaded not guilty and denied the commission of any offence by them, upon a charge being framed by the Sessions Court. The plea of the accused persons, when they were examined under section 313 of Criminal Procedure Code, was that of denial of involvement and of wrongful implication in the case. They however did not produce any evidence in their defence. The prosecution examined seven witnesses in support of their case. On the basis of the available evidence, the learned Trial Judge came to the conclusion that sufficient evidence was brought on record to prove the guilt of the accused persons and proceeded to convict and sentence the accused persons - hence this Appeal. 8. We have heard the learned Counsel Mrs.Sharmila : 6 : Kaushik for the Appellant No.1 and the learned APP Mrs. M.M. Deshmukh for the State. The learned Counsel appearing on behalf of the Appellant No.1 submitted that there were no eyewitness examined by the prosecution and the case of the prosecution rests on the circumstantial evidence and the dying declarations are not reliable and that there are lot of differences and changes in the dying declarations which amount to improvement which results in clouds of doubt, particularly because there were no eye witness to the incident. The learned Counsel for the Appellant No.1 further submitted that the time of admission of the deceased in the Rural Hospital at Manmad is 12:30 a.m. on 29.9.1995 and that the incident took place at about 9.00 p.m. on 28.9.1995 and there is a huge gap between the time of the incident and admission of the deceased to the hospital and thus there is some missing chain as to where was the deceased between 9.00 p.m. to 12:30 a.m. It is further submitted that the incident occurred in front of the hut of the deceased in a slum area and that it cannot be believed that there was no eye witness to the incident. The learned Counsel further submitted that assuming that the accused persons had committed the offence, the same would fall under Exception 4 of Section 300 of the Indian Penal Code since the act was as a result of a quarrel and was not premeditated. The learned Counsel urged before us that the kerosene used, was from the stove which was : 7 : lying at the house of the deceased and, therefore, it was not as if the accused persons had carried the kerosene and it is quite probable that during the quarrel and in the heat of the moment the accused persons took kerosene from the house of the deceased and committed the offence. 9. The crucial question in this case is whether the prosecution was able to bring on record that the accused persons and none else were responsible for causing the burn injuries by setting the deceased on fire on 28.9.1995 between 8.00 p.m. and 9.00 p.m., resulting in the death of the deceased. The prosecution has mainly relied upon the four dying declarations i.e. two ’oral’ dying declarations made by the deceased to her daughter Vanita (PW-1) and to her paramour Ratan (PW-2) (which have come on record in the form of examination-in-chief of PW-1 and PW-2) and two ’recorded’ dying declarations made by the deceased to Mr.Sadashiv S. Shinde, the Special Executive Magistrate at Manmad (PW-4) and also to Mr.Arun O. Bhavsar, Special Judicial Magistrate at Nasik (PW-6). Thus, amongst other corroborative evidence in the present case, the two recorded dying declarations and the testimony of PW-1 and PW-2 in respect of the two oral dying declarations are the basis of the conviction of the accused persons by the Trial Court. : 8 : 10. The prosecution has examined seven witnesses viz. (1) daughter of the deceased i.e. Vanita (PW-1), (2) paramour of the deceased i.e. Ratan Gaikwad (PW-2), (3) Dr.Lalchand Laxman Jadhav, Medical Officer at the Rural Hospital, Manmad (PW-3), (4) Mr.Sadashiv Shivram Shinde, Special Executive Magistrate, Rural Hospital, Manmad (PW-4), (5) Dr.Haribhau Yeshwantrao Gawade, Medical Officer, Civil Hospital, Nasik (PW-5), (6) Mr.Arun Omkar Bhavsar, Special Judicial Magistrate, Nasik (PW-6) and (7) Mr.Ramlala R. Birade, I.O., Manmad City Police Station, Manmad (PW-7). 11. Vanita (PW-1), daughter of the deceased, was the first person to come to the spot of the incident and saw the deceased in burnt condition. Vanita (PW-1) at the time of deposition was about 11 years old and she has deposed that there were quarrels between the deceased and the accused persons who were residing in front of their house. She further deposed that on the fateful day, she had gone to the house of Zubeda where there was a programme being held and when she came back to her house, she found her mother, i.e. the deceased, in burnt condition. She further deposed that her mother, the deceased, told her that the accused persons had poured kerosene on her person and she was set on fire. Vanita (PW-1) further deposed that upon hearing her mother she went to call her father who was working as a waiter in a hotel. In the cross-examination of : 9 : Vanita (PW-1), she has stated that the deceased had also informed her that on the same day as the incident also there was quarrel between the deceased and the accused persons. 12. It is pertinent to note the age of Vanita (PW-1), who is about 11 years old at the time of the deposition and was about 7 years old at the time of the incident. She is the first person to have come to the scene of the crime and deposed to the facts as mentioned above. It is highly unlikely that a witness of this age could have been tutored and she has also very innocently deposed that her mother was consuming liquor. We do not find any reason to disbelieve the evidence of this witness and find that the evidence of this 11 years old Vanita (PW-1) who is the daughter of the deceased is truthful and relevant in the facts of the case. 13. The paramour of the deceased, Ratan Gaikwad (PW-2) has deposed that his daughter (PW-1) came to his hotel at about 9:00 - 9:30 p.m. and that they rushed towards the house and saw the deceased in burnt condition. He has further deposed that the deceased told him that the accused persons had poured kerosene on her person and set her on fire and fled away. PW-2 has further deposed that about 3 - 4 days prior to the day of the incident, quarrel had taken place between : 10 : the deceased and the accused persons. It is further recorded that PW-2 carried the deceased in an autorikshaw in the Rural Hospital at Manmad, and thereafter on 30.09.1995 took her to the Civil Hospital at Nasik, where she expired after few days. In the cross-examination, the PW-2 has deposed that he carried the deceased to the Rural Hospital at Manmad around 10:00 - 10:30 p.m. and that his wife was in a position to speak. He has further deposed that she was lying alone on the street and nobody was there, as the people from the mohalla had gathered in the house of one Zubeda. 14. Dr.Lalchand Jadhav (PW-3) who was Medical Officer at the Rural Hospital at Manmad has deposed that the deceased was admitted to the hospital at 12:30 a.m. on 29.9.1995 and that the deceased gave medical history stating that the accused persons poured kerosene on her and she was set on fire and that the deceased was brought to the hospital by Ratan Gaikwad (PW-2). PW-3 has further deposed that the deceased was conscious when she was brought to the hospital and that he treated the deceased and informed the police and that the Special Executive Magistrate had recorded the statement of the deceased. In his cross-examination, PW-3 has stated that he noticed about 50% burn injuries on the deceased and that her face and neck and hands had burn injuries and that the Magistrate has recorded : 11 : the statement of the deceased and PW-3 has denied that the deceased was not in a position to talk at the time when she was brought to the hospital. The medical case record submitted by PW-3 also shows that the patient was conscious and records the incident of burning by pouring kerosene on her body by the accused persons and that the deceased was brought to the hospital by Ratan Gaikwad (PW-2) and the burn injuries and treatment were also recorded in the medical case record produced by PW-3. 15. Mr.Sadashiv S. Shinde (PW-4), who is the Special Executive Magistrate and who has recorded the dying declaration of the deceased (Exhibit - 35) at the Rural Hospital at Manmad, has deposed that the dying declaration was recorded by him at about 1 a.m. on 29.09.1995 and that the deceased was in a position to speak and give her statement and that the endorsement of the Doctor on the statement of the deceased was also obtained by him as also the thumb impression of the deceased and that he has also signed the said statement. In the cross-examination, PW-4 has denied that the deceased was not in a position to talk. 16. Dr.Haribhau Yeshwant Gawade (PW-5), who is the Medical Officer in the Civil Hospital at Nasik, where the deceased was shifted, has deposed that he examined the deceased at about 11:05 p.m. on 30.09.1995 and at : 12 : that time the patient was conscious and was in a position to talk and he has made an endorsement to that effect in the dying declaration and that the Magistrate (PW-6) recorded the dying declaration. He has further deposed that he examined the deceased again at 11:35 p.m. and put the endorsement again that the patient is conscious and able to speak. 17. PW-6, Arun O. Bhavsar, Special Judicial Magistrate, who recorded the dying declaration of the deceased on 30.09.1995 (Exhibit - 47) at the Civil Hospital at Nasik, has deposed that he came to the Civil Hospital at the written request of the police that the dying declaration of one woman with burn injuries was required to be recorded. He has deposed that he asked the Doctor-in-charge, Dr.Gawade (PW-5), to certify whether the deceased was in a position to speak and that the said Doctor examined the deceased and certified that the deceased was in a position to give a statement and he accordingly recorded the statement at about 11:00 p.m. on 30.09.1995. PW-6 has further deposed that the deceased gave all relevant information and also narrated the facts of the incident and he accordingly recorded her statement which was read over and explained to her and the right hand thumb impression of the deceased was obtained by him and he attested her signature. PW-6 has further deposed that thereafter he again called Dr.Gawade (PW-5) and : 13 : requested him to examine the patient once again and certify that the patient is conscious and able to speak which was accordingly done by Dr.Gawade (PW-5) and the said Dr.Gawade (PW-5) again put his signature below his own signature. We have taken note of the fact that PW-6, Mr. Arun O. Bhavsar, Special Judicial Magistrate has requested the Doctor (PW-5) to make an endorsement on the dying declaration with regard to the condition of the victim not only before, but also after the recording of the dying declaration. 18. Investigating Officer, Shri.Ramlala R. Birade (PW-7), in the case, attached to Manmad City Police Station has deposed that he carried out spot panchanama and seized the articles viz. stove of kerosene, burnt pieces of saree and petticoat smelling of kerosene, which were sent to the Chemical Analyser and he arrested the accused persons and recorded the statements of the relevant witnesses. After the deceased died, inquest panchanama was carried out by the police constable on duty at Civil Hospital at Nasik and the post mortem report and the inquest panchanama was received by them and the charge sheet was filed by him in Court. 19. It would be relevant at this stage to examine the expression "dying declaration" and relevant provisions of Indian Evidence Act, 1872 (IEA for : 14 : short). Section 59 and 60 of IEA provides as under: "59. Proof of facts by oral evidence-All facts, except the contents of documents or electronic records, may be proved by oral evidence. "60. Oral evidence must be direct-Oral evidence, must in all cases whatever, be direct, that is to say- If it refers to a fact which could be heard, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds: Provided................." 20. Thus, the general rule is that all oral evidence must be direct and not hearsay. However, there are certain exceptions to this general rule, which are enumerated in Section 32 of the IEA. Section 32 of IEA deals with statement by persons who cannot be called as witnesses and reads as under: "32. 32. 32. Cases Cases Cases in which statement of relevant in which statement of relevant in which statement of relevant fact fact fact by person who is dead or cannot be found, by person who is dead or cannot be found, by person who is dead or cannot be found, etc., etc., etc., is relevant-- is relevant-- is relevant--Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases: (1). (1). (1). When When When it realtes to cause of it realtes to cause of it realtes to cause of death-- death-- death--When the statement is made by a : 15 : person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. . Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. (2) (2) (2) _____________ _____________ _____________ (3) (3) (3) _____________ _____________ _____________ (4) (4) (4) _____________ _____________ _____________ (5) (5) (5) _____________ _____________ _____________ (6) (6) (6) _____________ _____________ _____________ (7) (7) (7) _____________ _____________ _____________ (8) (8) (8) _____________. _____________. _____________." . Clause (1) of Section 32 is thus relevant for our purposes, which clause generally is described as the "dying declaration" though such expression has not been used in the statute. Dying declaration essentially means statements made by persons as to the cause of his death or as to the circumstances of the transaction resulting in his death. 21. The principle on which dying declaration is admitted in evidence is indicated in the legal maxim "nemo moriturus praesumitur mentire - a man will not meet his Maker with a lie in his mouth". As held in a catena of judgments of the Hon’ble Apex Court, the grounds of admission with regard to dying declaration are firstly the necessity for victim being generally : 16 : the only principle witness to the crime, the exclusion of the statement might deflect the ends of justice and secondly, the sense of impending death, which creates a sanction equal to the obligation of an oath. The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and every hope of this world is gone, when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth, a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by positive oath administered in a Court of Justice. The situation in which a person is on the deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded, it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. 22. It has been further held that though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of : 17 : cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court