1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO.107 OF 2008 Sambhaji s/o Yoga Sirsat, Age 42 years, R/o Manur, Tq. Shirur, District Beed. ... APPELLANT VERSUS The State of Maharashtra (Copy to be served on the Public Prosecutor, High Court of Judicature of Bombay, Bench at Aurangabad ... RESPONDENT ..... Shri B.N. Palve, Advocate for the appellant Shri S.D. Kaldate, A.P.P. for respondent ..... CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. DATED : 7th January, 2010. ORAL JUDGMENT (PER HARDAS, J.): 1. The appellant, who stands convicted for an offence punishable under Section 302 of the Indian Penal Code, on the allegations that the appellant had set his wife Babita ablaze on 6.7.2007, by this appeal, questions the correctness of his conviction and sentence. 2 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus: P.W.6 Sopan More, a P.I. attached to the Shirur Police Station, was entrusted with the investigation of Crime No.37/2007 under Section 307 of othe Indian penal Code. It appears that, the aforesaid offence came to be registered on the basis of the statement of deceased Babita which had been recorded by P.W.5 Balaji. P.W.5 Balaji, an A.S.I. attached to the Civil Hospital Outpost at Beed was informed by the Duty Medical Officer about admission of Babita in the hospital. He, therefore, obtained opinion of the Medical Officer if Babita was in a condition to give her statement and on the Medical Officer so certifying, P.W.5 Balaji Jadhav recorded the statement of Babita at Exhibit 26. In the aforesaid statement, Babita had stated that the appellant had quarreled with her under influence of liquor and the appellant, after abusing her, had asked her to set herself ablaze. Babita accordingly had poured kerosene on herself and the appellant had set her ablaze. On the basis of the said statement, which was recorded at about 5.20 p.m., offence punishable under Section 307 of the Indian Penal Code vide Crime No.37/2007 came to be registered. P.W.6 P.I. More, on being entrusted with the investigation of the said crime, proceeded to the scene of the 3 incident which was the house of the appellant/ accused and drew the scene of offence panchanama at Exhibit 35. From the scene of the offence, certain articles came to be seized. He thereafter recorded the statements of the witnesses and arrested the accused. On 19.1.2007, a letter came to be issued to the Tahsildar, requesting him to draw the sketch of the scene of the offence. The sketch of the scene of the offence is at Exhibit 39. The seized articles were referred to the Chemical Analyser along with the requisition at Exhibit 40. The report of the Chemical Analyzer is at Exhibit 41. Babita succumbed to her injuries on the next day i.e. on 7.7.2007 and accordingly, an inquest panchanama came to be drawn. Dead body of deceased Babita was referred for post mortem examination and post mortem came to be conducted by P.W.4 Dr. Sanjay Janwale. He noticed that deceased Babita had sustained about 99% burn injuries which were ante mortem in nature. The post mortem report at Exhibit 21 discloses the cause of death as cardio respiratory arrest due to hypovolumic shock due to 99% burns. Further to the completion of the investigation, a charge sheet against the appellant came to be filed. On committal of the case to the Court of Sessions, trial Court, vide Exhibit 4, framed a charge against the appellant for offence punishable under Section 302 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. Prosecution, in support of its case, examined six witnesses. 4 P.W.1 Dnyanoba, father of deceased Babita and P.W.2 Raosaheb, brother of deceased did not support the prosecution and were declared hostile. The conviction rested upon the dying declaration at Exhibit 77 recorded by P.W.3 Digambar and at Exhibit 26 recorded by P.W.5 Balaji. The trial Court accordingly convicted and sentenced the appellant as aforestated. 3. Before we deal with the submissions advanced before us by Mr. B.N. Palve, learned counsel for the appellant, we would like to advert to the evidence of P.W.1 Dnyanoba. According to P.W.1 Dnyanoba, father of deceased Babita, Babita had been married to the appellant/ accused about 20 years prior to the incident. P.W.1 Dnyanoba states that the accused was treating Babita nicely and nephew of the appellant had informed him that Babita had “burnt herself”. He further states that Babita had disclosed to her that she has committed suicide. He accordingly was declared hostile and was cross-examined by the prosecution. Portions from his statement were denied to have been stated by him. In cross-examination on behalf of the appellant, he has admitted that six months prior to the incident Babita had attempted to commit suicide by jumping into the well. Similar is the evidence of P.W.2 Raosaheb, brother of deceased Babita. He too admits that Babita had attempted to commit suicide six months prior to the incident. 5 4. Mr. Palve, learned counsel for the appellant has urged before us that perusal of the two dying declarations at Exhibit 17 and Exhibit 26 discloses that there are variance on the material aspect of the incident and as such, no reliance can be placed on the said dying declarations. It is also urged before us that possibility that deceased Babita had committed suicide cannot be ruled out. The learned A.P.P. has supported the judgment of the trial Court and has urged before us that the variance is not of such a magnitude as would entail the rejection of both the dying declarations. 5. Dying Declaration at Exhibit 26 is recorded by P.W.5 Balaji. Babita states that the accused had been ill-treating and torturing her since last 4 to 5 years. The accused was habituated to consumption of liquor and in an intoxicated condition would level all sorts of allegations against Babita. Babita further states in the said dying declaration that her elder daughter had come to her for delivery and accused misbehaved and abused his daughter and Babita and as a result of abuses of appellant, the daughter of the appellant had gone to the house of brother of the appellant and resided there. In respect of the incident, Babita states that the appellant had come in an intoxicated condition and had abused Babita. The dying declaration further suggest that 6 the appellant told Babita to commit suicide. Babita accordingly poured kerosene on herself and the appellant set her ablaze. In the dying declaration at Exhibit 21, Babita states that she had been subjected to mental torture at the hands of the appellant for the last 4 to 5 years as the appellant used to abuse Babita under the influence of liquor. She states that on the day of the incident, the appellant came in an inebriated condition and quarreled with her and in a fit of anger, Babita poured kerosene on herself. Remaining quantity of 4 litres kerosene was poured by the appellant and the appellant then set her ablaze. Prima facie we find, therefore, that there is no consistency in the two written dying declarations, at Exhibit 17 and Exhibit 26. 6. Learned counsel for the appellant has invited our attention to the Division Bench judgment of this Court in Suresh s/o Arjun Dodorkar (Sonar) Vs. State of Maharashtra (2005 ALL MR (Cri) 1599). The Division Bench of this Court, to which one of us (P.V. Hardas, J.) was a member, held as follows : “In cases resting on multiple written dying declarations, the Courts cannot pick and choose any one dying declaration. All the dying declarations have to be consistent in respect of material aspects of the incident. According to us, consistency is expected in multiple dying declarations in respect of the names and the number of accused, the prelude to the incident 7 and the incident itself. In these two dying declarations there is consistency in respect of the name and the number of accused. However, in respect of the prelude to the incident, there is variance. There is also variance in respect of the incident itself. The variance is apparent on perusal of the dying declarations and can be discerned from the perusal of the same. Therefore, according to us, no reliance can be placed on the two written dying declarations Exhs.24 and 27.” 7. Our attention has been invited to the judgment of the Division Bench of this Court, to which one of us (P.V. Hardas, J.) was a member, in Md. Rafiq Md. Tajoddin Vs. State of Maharashtra (2005 ALL MR (Cri) 972). The Division Bench has held thus : “The variances in the multiple dying declarations vis-a-vis each other necessarily casts a cloud of suspicion regarding the truthfulness of the contents of the dying declarations. The dying declarations are shorn of the sanctity which is attached to the dying declarations cannot be made the foundation for sustaining a conviction. In cases of multiple dying declarations it is not permissible for the Court to pick up some facts from each of the dying declarations and use them as pieces of jigsaw puzzle to reconstruct an entirely new declaration. The dying declaration should be accepted in its entirety and it is impermissible to pick and choose pieces from the 8 dying declaration. In the event of inter se discrepancies in the dying declarations, it is extremely unsafe to accept any one as a truthful narration, particularly in the absence of any other evidence which would render a particular version as a truthful version.” 8. Learned counsel for the appellant has placed reliance on the judgment of the Supreme Court in Amol Singh Vs. State of M.P. (2008 (8) Scale 63), wherein the Supreme Court held that, in cases resting on multiple dying declarations, reliability and not plurality is what matters. The Supreme court further held that the Court has to examine the nature of the inconsistency as to whether they are material or not. In the reported case the Court found that the two dying declarations were inconsistent and the inconsistencies were as regards motive and the modus operendi of sprinkling kerosene and setting the deceased ablaze. In the light of the inconsistent versions of the dying declarations, the Supreme Court acquitted the accused. 9. In the present case also we find that there is material inconsistency in the two dying declarations. In the first dying declaration, deceased Babita states that it was the accused who asked her to commit suicide and accordingly Babita had poured kerosene on herself and it was the appellant who had set her ablaze. In the second dying declaration, Babita states that the 9 appellant had quarreled with her and out of anger, Babita had poured kerosene and the remaining quantity of kerosene was poured by the appellant and thereafter the appellant set her ablaze. The aforesaid inconsistency in the dying declaration is apparent and discernible on the perusal of the two dying declarations. Coupled with this, the evidence of P.W.1 Dnyanoba and P.W.2 Raosaheb indicates that Babita had attempted to commit suicide about six months prior to the incident. Possibility that Babita could have committed suicide cannot be ruled out in the light of the recitals in the dying declarations itself. In the dying declaration Babita states that she had been subjected to mental torture for the last 4 to 5 years at the hands of the appellant, who in an inebriated condition would abuse Babita. Babita also states that the appellant was unemployed and Babita was required to do manual labour in order to ensure the sustenance of the family. In that light of the fact and in the light of the inconsistency in the dying declarations, according to us, the possibility that Babita may have committed suicide out of sheer frustration and anger cannot be ruled out. In that light, therefore, according to us, the appellant would be entitled to be given the benefit of doubt. 10. Accordingly, this Criminal Appeal is allowed and conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offence with which 10 he was charged and convicted. Fine, if paid by the appellant, be refunded to him. Since the appellant is in jail, he be released forthwith if not wanted in any other case. (SHRIHARI P. DAVARE, J.) (P.V. HARDAS, J.) Authenticated copy (F.M. Pathan) Private Secretary