1 (APEAL-707.04) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 707 OF 2004 1. Anand @ Bhausaheb Yuvraj Patil. ) Age 28, ) [At present in Central Prison, Thane] ) ) 2. Smt. Lilabai Yuvraj Patil, ) Age 54, ) ) Both residing at Building No.59B, 2786 ) Vartak Nagar Police Line, Thane ) ..Appellants. Taluka and District Thane ) (Original Accused Nos. 1 and 2) V/s The State of Maharashtra, ) ...Respondent. Mr. A. Majeed Menon for Appellant Nos. 1 and 2. Mrs. V.R. Bhosale, APP for the State. CORAM: V. M. KANADE & A.M. THIPSAY, JJ DATE : OCTOBER 10, 2011 ORAL JUDGMENT: (Per V.M. Kanade, J.) 1. Appellants are original accused Nos. 1 and 2. (For the sake of convenience they shall be hereinafter referred to as 2 (APEAL-707.04) “accused Nos. 1 and 2”.) They are challenging the judgment and order passed by the Ad-hoc Sessions Judge, who, by his judgment and Order dated 28/05/2004, convicted them for the offence punishable under section 302 read with section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life. They were also convicted for the offence punishable under section 316 read with section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for five years. Fine of Rs 1000/- was imposed upon them on each count and, in default, sentence of rigorous imprisonment for three months was imposed. They were also convicted for the offence punishable under section 323 read with section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three months and to pay fine of Rs 500/- each and, in default, to suffer rigorous imprisonment for one month. They were also convicted for the offence punishable under section 498-A read with section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs 500/- and, in default, to suffer further rigorous imprisonment for three months. Sentences were directed to 3 (APEAL-707.04) run concurrently. 2. During pendency of the appeal original accused No.2 was released on bail. Accused No.1 is in jail since the date of his arrest. He was released on bail only for a period of two weeks. 3. Prosecution case, in brief, is that the accused Nos. 1 and 2 and 3 to 11 used to ill-treat the deceased Jyotsna. She was the wife of accused No.1 and on 18/02/2001, original accused Nos. 1 and 2 poured kerosene on her and set her on fire. Accused No.1 and Jyotsna got married in April 2000. Between 14/10/2000 and 18/02/2001 she was subjected to cruelty by the accused Nos. 1 and 2 and accused Nos. 3 to 11. On 18/02/2011, at about 7.15 a.m to 7.30 a.m, the accused No.1 went on his duty and there was an altercation between the husband and wife and, thereafter, Jyotsna was set on fire. The neighbours came and extinguished the fire and the mother-in-law and her neighbours took her to the hospital. However, she succumbed to the injuries. 4 (APEAL-707.04) 4. Prosecution examined in all 13 witnesses. Statements of the accused were recorded under section 313 of the Criminal Procedure Code. The accused examined one witness in their defence. Trial Court convicted accused Nos. 1 and 2. Trial Court, however, acquitted accused Nos. 3 to 11. 5. The learned Counsel appearing on behalf of original accused Nos. 1 and 2 has taken us through the judgment and order of the Trial Court and also the evidence adduced by the prosecution and the defence. At the outset, he fairly conceded that so far as the offence punishable under section 498-A read with section 34 of the Indian Penal Code is concerned, there is sufficient material on record which indicates that the Trial Court was justified in convicting the accused for the said offence. He submitted that the question which was required to be decided by this Court was : whether the death of Jyotsna was accidental or homicidal? He submitted that there was no sufficient material on record to implicate the accused for the offence punishable under section 302 read with section 34 of the Indian Penal Code 5 (APEAL-707.04) and it was not clear whether the said incident had happened on account of an accident or was a case of suicide. It was, therefore, submitted that the accused Nos. 1 and 2 were entitled to get benefit of doubt. He further submitted that four dying declarations were recorded by the police. In the first two dying declarations, the deceased had stated that the incident had taken place on account of an accident, whereas, in the last two dying declarations, she had stated that her husband had set her on fire. It was submitted that, under these circumstances, no reliance could be placed on the dying declarations. He submitted that so far as accused No.1 is concerned, he was on night duty on 17/02/2001 and he was to be relieved on 18/02/2001 at 8.30 a.m. It was submitted that the entry was made in the muster which indicated the since telephone call was received at the Police Station that accident had taken place in his house, he was relieved from the duty. It was, therefore, submitted that the presence of accused No.1 was not established by the prosecution and none of the witnesses has stated or talked about his presence. The learned Counsel relied on the 6 (APEAL-707.04) judgment of the Apex Court in Smt. Kamla vs State of Punjab1 and submitted that where there were multiple dying declarations and there were inconsistencies in all the dying declarations, it was not proper to pick out one statement in which the accused was implicated and convict the accused on that basis. 6. On the other hand, the learned APP appearing on behalf of the State submitted that even if there are multiple dying declarations, if the Court comes to the conclusion that dying declaration is voluntary and truthful and genuine and has been made when the deceased was in a conscious state of mind then, in such case, it could form the basis for conviction even if there was no other corroboration. The learned APP relied upon the judgment of the Apex Court in Puran Chand vs. State of Haryana2. She also relied on the judgment of the Apex Court in Bijoy Das vs. State of West Bengal3 and, lastly, on the judgment of the Apex Court in Lakhan vs. State of Madhya Pradesh4. 1 1993 CRI.L.J.68 2 (2010) 6 SCC 566 3 (2008) 4 SCC 511 4 (2010) 8 SCC 514 7 (APEAL-707.04) 7. After having heard the learned Counsel appearing on behalf of accused Nos. 1 and 2 and the learned APP appearing on behalf of the State, in our view, prosecution has not established its case beyond the reasonable doubt in respect of the offence punishable under section 302 read with section 34 and sections 316, 323 read with section 34 of the Indian Penal Code and benefit of doubt will have to be given to the accused for the said offences. However, so far as offence punishable under section 498-A read with section 34 is concerned, there is sufficient material on record and, in our view, Trial Court was justified in convicting the accused for the said offence. In our view, however, mother of the deceased is entitled to get compensation. Even otherwise, the learned Counsel appearing on behalf of accused Nos. 1 and 2 has fairly conceded that so far as offence under section 498-A is concerned, there being sufficient material on record, he does not seriously press his appeal in respect of the said offence. 8. So far as the offence punishable under section 302 read 8 (APEAL-707.04) with section 34 of the Indian Penal Code is concerned, the prosecution has relied on two dying declarations viz the dying declaration which is at Exhibit-32 and another dying declaration which is at Exhibit-66. In both these dying declarations, deceased has stated that the accused committed the said offence. The defence, however, examined one witness viz Dilip Pandhare who was the Special Executive Magistrate. He has stated that he had received a requisition letter dated 18.2.2001 in which it was stated that one woman was admitted in the hospital and she has sustained burn injuries and he was asked to record her dying declaration. The said requisition letter is at Exhibit-67. It was signed by PSI Kingi who showed the reports at Exhibit-64 and 65 issued by the Medical Officer in respect of the condition of the patient Jyotsna. He has stated that he then went to Burn Ward on 18/02/2001 at about 8.15 a.m and recorded statement of Jyotsna. That dying declaration is at Exhibit-119. He has stated that, again, on the same day, at about 11.30 a.m., he recorded second dying declaration of Jyotsna. He has stated that all questions which were asked to Jyotsna were answered by her. However, question No.7 9 (APEAL-707.04) was replied by her mother-in-law – accused No.2. The said dying declaration is at Exhibit-120. The entire prosecution case, therefore, hinges on two dying declarations which were produced by them at Exhibit-32 and Exhibit-66. The defence, however, has relied on two dying declarations at Exhibits-119 and 120 which were produced on record by them by examining the Special Executive Magistrate and which dying declarations were suppressed by the prosecution. In this context, therefore, each of the dying declarations which was recorded will have to be examined to find out whether reliance could be placed either on the dying declarations produced by the prosecution or dying declarations which were suppressed by the prosecution but were produced by the defence and these dying declarations will have to be examined in sequence in which they were recorded. 9. Before we take into consideration the evidence which is brought on record by the prosecution and defence in respect of dying declarations of the deceased which are brought on record, it is necessary to briefly examine the law on the 10 (APEAL-707.04) point of dying declarations. Section 32 sub-clause (1) of the Evidence Act makes an exception to the general rule that hearsay evidence is not admissible. The doctrine of dying declaration is enshrined in the legal maxim memo moriturus praesumitur mentire, which means, “a man will not meet his Maker with a lie in his mouth”. The doctrine of dying declaration is enshrined in section 32 of the Evidence Act, 1872, as an exception to the general rule contained in Section 60 of the said Act which provided that oral evidence, in all cases, must be direct which means that the evidence should be given by a witness who says that he either saw it, heard it or perceived it as the case may be. The dying declaration is, in fact, a statement of a person who cannot be called as witness and, therefore, cannot be cross- examined. 10. It will have to be briefly seen what is the legal position regarding the circumstances under which reliance can be placed on dying declaration and to what extent reliance can be placed on it or whether it can be a sole basis for recording conviction and in the event of there being multiple dying 11 (APEAL-707.04) declarations and there are inconsistencies between them whether all dying declarations should be discarded or reliance can be placed on one of the dying declarations to the exclusion of other. 11. Initially, the Apex Court in Ram Nath Madhoprasad and others v. State of Madhya Pradesh1 has observed that it was not possible to convict the accused merely on the evidence of dying declaration without any corroboration and there was a difference of opinion with regard to the value of dying declaration as a piece of evidence. This conflict on this aspect was set at rest by the Apex Court in Khushal Rao v. State of Bombay2. In that case, the Apex Court summarized the legal position as under:- “1) That it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; 2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; 1 AIR 1953 S.C. 420 2 1958 SC 22 12 (APEAL-707.04) 3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; 4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; 5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character; and 6) that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for 13 (APEAL-707.04) observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.” The Apex Court, in the said case, further observed that : “Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But, once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the 14 (APEAL-707.04) assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case.” 12. Thereafter, in several judgments of the Apex Court the question of evaluation of dying declaration as a piece of evidence has been considered. The Apex Court in its recent judgment in Bijoy Das vs. State of West Bengal1 has taken into consideration its judgments in Narain Singh v. State of 1 (2008) 4 SCC 511 15 (APEAL-707.04) Haryana1, Babulal v. State of M.P.2, Ravi v. State of T.N.3, Muthu Kutty v. State4 and in Paniben v. State of Gujarat5 wherein principles governing dying declaration has been summed up as under:- “(i ) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P. (1976 (3) SCC 104). (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav [(1985) 1 SCC 552] and Ramawati Devi v. State of Bihar (1983 (1) SCC 211). (iii) The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. 1 (2004) 13 SCC 264 2 (2003) 12 SCC 490 3 (2004) 10 SCC 776 4 (2005) 9 SCC 113 5 (1992) 2 SCC 474 16 (APEAL-707.04) Public Prosecutor (1976 (3) SCC 618). (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P. (1974 (4) SCC 264). (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P.(1981 Supp. SCC 25). (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P. (1981 (2) SCC 654) (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu (1980 Supp. SCC 455) (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State 17 (APEAL-707.04) of Bihar (1980 Supp. SCC 769). (ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P. (1988 Supp. SCC 152) (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan (1989 (3) SCC 390 ) (xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra (1982 (1) SCC 700)” In its judgment in Puran Chand vs. State of Haryana1, the 1 (2010) 6 SCC 566 18 (APEAL-707.04) Apex Court in para 18 and 19 has observed as under:- “18. The law is now well settled that a dying declaration which has been found to be voluntary and truthful and which is free from any doubts can be the sole basis for convicting the accused. This Court in Sham Shankar Kankaria v. State of Maharashtra [(2006) 13 SCC 165] has taken stock of the following cases where the principles governing dying declaration have been laid down:- (i) Paniben v. State of Gujarat [(1992) 2 SCC 474] (ii) Munnu Raja v. State of M.P. [(1976) 3 SCC 104] (iii) State of U.P. v. Ram Sagar Yadav [(1985) 1 SCC 552 (iv) Ramawati Devi v. State of Bihar [(1983) 1 SCC 211 (v) K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC 618) (vi) Rasheed Beg v. State of M.P. [(1974) 4 SCC 264 (vii) Kake Singh v. State of M.P. [1981 Supp SCC 25] (viii) Ram Manorath v. State of U.P. [(1981 2 SCC 654] (ix) State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp SCC 455]. (x) Surajdeo Ojha v. State of Bihar [1980 Supp SCC 769] (xi) Nanhau Ram v. State of M.P. [1988 Supp SCC 152] (xii) State of U.P. v. Madan Mohan(1989)3 SCC 390 (xiii) Mohanlal Gangaram Gehani vs. State of 19 (APEAL-707.04) Maharashtra [(1982) 1 SCC 700]” “19. In para 12 of the abovesaid judgment in Kankaria case [(2006) 13 SCC 165], this Court has held that dying declaration is the only piece of untested evidence and must like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. This Court has further reiterated that if after careful scrutiny the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it a basis of conviction, even if there is no corroboration. In that behalf, this Court has referred the reported cases of Gangotri Singh v. State of U.P. [1993 Supp (1) SCC 327]; Goverdhan Raoji Ghyare v. State of Maharashtra [1993 Supp (4) SCC 316], Meesala Ramakrishan v. State of A.P. [(1994) 4 SCC 182] and State of Rajasthan v. Kishore (1996) 8 SCC 217]. We are in respectful agreement with the law laid down and would hasten to add that in the present case the dying declaration of Santosh passes all the tests referred to by us above.” 20 (APEAL-707.04) Similarly, in its very recent judgment in Lakhan vs. State of Madhya Pradesh1, the Apex Court in paras 12, 13 and 15 has observed as under:- “12. A dying declaration recorded by a competent Magistrate would stand on a much higher footing than the declaration recoded by officer of lower rank, for the reason that the competent Magistrate has no axe to grind against the person named in the dying declaration of the victim, however, circumstances showing anything to the contrary should not be there in the facts of the case (Vide Ravi Chander v. State of Punjab [(1998) 9 SCC 303], Harjit Kaur v. State of Pubjab [(1999) 6 SCC 545], Koli Chunilal Savji vs. State of Gujarat [(1999) 9 SCC 562] and Vikas v. State of Maharashtra [(2008) 2 SCC 516]” “13. In Balak Ram v. State of U.P. [(1975) 3 SCC 219], the question arose as to whether the dying declaration recorded by a higher officer can be discarded in case of multiple dying declarations. The Court held as under : (SCC p. 235, para 54). 1 (2010) 8 SCC 514 21 (APEAL-707.04) “54. ... The circumstances surrounding the dying declaration, though uninspiring, are not strong enough to justify the view that officers as high in the hierarchy as the Sub-Divisional Magistrate, the Civil Surgeon and the District Magistrate hatched a conspiracy to bring a false document into existence. The civil services (sic servants) have no platform to controvert allegations, howsoever grave and unfounded. It is, therefore, necessary that charges calculated to impair their career and character ought not to be accepted except on the clearest proof. We are not prepared to hold that the dying declaration is a fabrication.” “15. In case, there are inconsistent dying declarations, the Court must rely upon any other evidence, if available, as it is not safe to act only on inconsistent dying declarations and convict the accused. (Vide Lella Srinivasa Rao v. State of A.P. [(2004) 9 SCC 713]” The Division Bench of this Court in Kalyan Balasaheb Barungale vs. The State of Maharasthra1 has observed that if there are multiple dying declarations and all of them have glaring inconsistencies in material particulars, it is unsafe to 1 1998 ALL MR (Cri) 523 22 (APEAL-707.04) convict the accused by picking out one of the confessions and making it a sole basis of conviction. Similarly, the Apex Court in Smt. Kamla v. State of Punjab1 has also observed that where there are additional dying declarations made by the deceased and there are glaring inconsistencies, conviction could not be based on one of the dying declarations implicating the accused. 13. In view of the law which is laid down by the Apex Court,