apl356.11 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 356 OF 2011 1 Chandar s/o Laxman Rakhunde Age 40 years, Occ. Labourer, 2 Shobha w/o Chandar Rakhunde Age 40 years, Occ. Labourer, Both R/o. Anildada Nagar, Dhule Road, Chalisgaon, District Jalgaon ...Appellants Versus The State of Maharashtra Through, P.S.I. Chalisgaon Police Station, Chalisgaon, Dist. Jalgaon ...Respondent ..... Mr. Joydeep Chatterji, counsel i/b Mr. P.B. Patil, advocate for the appellants Mr. V.D. Godbharle, APP for respondent-State ..... CORAM : S. B. DESHMUKH AND A.M. THIPSAY, JJ. DATE OF RESERVING THE JUDGMENT : 15.12.2011 DATE OF PRONOUNCING THE JUDGMENT : 23.12.2011 JUDGMENT (PER A.M. THIPSAY, J.) 1 The appellants were the accused Nos. 1 and 2 in Sessions apl356.11 -2- Case No. 125 of 2007, in the Court of Sessions at Jalgaon. The allegation against them was that they had committed offences punishable under section 498-A of I.P.C. and section 302 of I.P.C. r.w. Section 34 of I.P.C. The learned Additional Sessions Judge, after holding a trial, found them guilty of an offence punishable under Section 302 of I.P.C. r.w. Section 34 of the I.P.C. and sentenced both of them to suffer imprisonment for life and to pay a fine of Rs.1000/- in default to suffer R.I. for two months. The appellants were, however, acquitted of the offence punishable under Section 498-A of I.P.C. r.w. Section 34 thereof. 2. The appellants, being aggrieved by their conviction, with respect of the offence punishable under Section 302 of I.P.C. r.w. Section 34 of I.P.C., have approached this Court by filing the present appeal. 3. The prosecution case before the trial court, was, in brief, as follows:- a. Ujwala, the daughter of Tolabai (P.W.3), married Deepak, the son of the appellants, some time in the year 2006. After her marriage, Ujwala had been residing with her husband Deepak and the appellants, in the matrimonial house at Chalisgaon. That, the appellants used to insist that Ujwala should bring Rs. apl356.11 -3- 10,000/- from her parents for purchase Auto Rickshaw for Deepak. As this demand of money was not being met, Ujwala was being treated with cruelty by the appellants. b) That, on 6.3.2007, the naming ceremony of the son of Ujwala’s maternal uncle was to take place at Nashik. Ujwala’s mother Tolabai, therefore, had gone to Chalisgaon to take Ujwala to Nashik to attend the said ceremony. However, the appellants refused to send Ujwala to Nashik and therefore, Tolabai alone returned back to Nashik. One Jijabai Bodke (P.W. 9), a relative of Tolabai, however, stayed in the house of the appellants at Chalisgaon. c) That, on 7.3.2007, at about 10.00 a.m., one Suresh Fasge of Devlali, came to the house of Tolabai (P.W.3) and informed her that he had received a telephonic message from Chalisgaon that Ujwala had suffered burn injuries in her matrimonial house and that she was admitted in the Civil Hospital, Dhule. Tolabai, her son-Sonu (P.W.4) and other relatives rushed to Dhule and met Ujwala, who was undergoing treatment in the burn ward of the said Hospital. Tolabai asked Ujwala as to how she had sustained the burn injuries, when Ujwala told her that as the appellants had refused to send her with Tolabai for going to apl356.11 -4- Nashik, she was weeping. It was at about 5.30 a.m. That, her husband Deepak and the appellants came towards her and asked her as to why she was not bringing money from her parents and why she was weeping. The appellants and Deepak abused and assaulted Ujwala. The appellant No.2 Shobha brought kerosene bottle from inside the house and poured the same on the person of Ujwala. At that time, Deepak had held Ujwala. The appellant No.1 lighted a matchstick and threw the same on the person of Ujwala and that is how Ujwala caught fire and sustained the burn injuries. d) On the next date, Tolabai lodged a report with the Chalisgaon police station, which was recorded by API, Suresh Jadhav (P.W.8), It was treated as the First Information Report and on that basis, a case in respect of an offence punishable under Sections 307, 498-A, 323, 504, 506 r.w. Section 34 of I.P.C. was registered against the appellants and the said Deepak. Investigation was carried out by API Suresh Jadhav (P.W.8) who went to the spot and prepared spot panchnama. Burnt saree, brassiere, blouse, kerosene bottle and one match box, that were found on the spot, were seized under the panchnama (Exh.41). apl356.11 -5- e) The statements of several persons were recorded in the course of investigation. All the three accused i.e. The present appellants and the said Deepak were arrested on 10.3.2007. f) Ujwala succumbed to the burn injuries on 14.3.2007. Thereafter, the accusation of an offence punishable under Section 302 of I.P.C. also came to be levelled against the accused persons. g) Post mortem examination was conducted on the dead body of Ujwala. The seized articles were sent to Chemical Analyzer alongwith a Lady police Constable Smt. Bhavsar (P.W. 7) on 19.3.2007. Memorandum of post mortem examination (Exh.42) was collected in the course of investigation. 4. On completion of investigation, a charge sheet was filed, pursuant to which the appellants were tried. As aforesaid, the trial resulted in their conviction. 5. It appears that, as the son of the appellants, Deepak (husband of Ujwala) was a juvenile, his trial was separated. The appellants were, thus, the only accused in the said Sessions Case. apl356.11 -6- 6 The prosecution examined totally nine witnesses during the trial. Veersing Gavit (P.W.2), Executive Magistrate, is the one, who had recorded a statement of Ujwala, which was tendered in evidence as a dying declaration (Exh.17), made by Ujwala. P.W.1 Dr. Prashant Deore, who was attached to the Civil Hospital, Dhule, at the material time, is the one, who had examined Ujwala and given his opinion about her health condition to Gavit (P.W.2), before Gavit recorded her statement. The 3rd witness, it may be recalled, is the first informant Tolabai and the 4th witness is Sonu,-brother of Ujwala. The 5th witness, Somnath Gaikwad, is a panch in respect of the spot panchnama (Exh.30) but he did not support the prosecution and was declared as hostile. The 6th witness, Santosh Jadhav, is also a panch witness in respect of another panchnama (Exh.32), but he also did not support the prosecution case and was declared hostile. The 7th witness, Smt. Sharda Bhavsar, it may be recalled, is the lady police constable, who had taken the seized articles to the Chemical Analyzer’s office at Nashik on 20.3.2007. The 8th witness, Suresh Jadhav, is the investigation Officer and the 9th witness, Jijabai Bodke, a relative of Tolabai, is supposed to be an eye witness to the incident of setting Ujwala on fire. Jijabai, however, did not support the prosecution case and was declared as hostile. 7. We have heard Mr. Joydeep Chatterji, the learned counsel for apl356.11 -7- the appellants and Mr. Godbharle, the learned APP for the respondent-State. With the assistance of the learned counsel, we have gone through the entire evidence, the impugned judgment and other relevant record. 8. That, Ujwala had caught fire, sustained burn injuries and that she succumbed to the burn injuries is not in dispute at all. The notes of the post mortem examination (Exh.42) show that Ujwala had sustained 90%, superficial to deep, burn injuries and that the probable cause of her death was opined as ‘septicemia following thermal burns’. Thus, that Ujwala died an unnatural death due to the burn injuries, is satisfactorily established. The only question is whether the appellants (and the said Deepak) had set her on fire, as per the case of the prosecution. 9. The case against the appellants is based only on the dying declarations, said to have been made by Ujwala. Ujwala is said to have made a dying declaration to Tolabai and Sonu, which was not recorded by them. In their evidence, however, they stated as to what Ujwala stated to them. It may be recalled, that another dying declaration made by Ujwala to Veersing Gavit (P.W.2), was reduced to writing (Exh.17) by him. apl356.11 -8- 10. The main contention advanced by Mr. Chatterji, the learned counsel for the appellants, is that, apart from the dying declaration of Ujwala recorded by Gavit, two more dying declarations of Ujwala were recorded-one by the Executive Magistrate Shri Thakur and the other by a police Officer from Dhule police station. He submitted that, the dying declaration of Ujwala recorded by the Executive Magistrate Shri Thakur, was produced before the court, marked, and exhibited (Exh. 20). He pointed out that the dying declaration recorded by a police Officer from Dhule police station, was also produced before the Court and marked as Article “A”. He submitted that in these two dying declarations, Ujwala had given a version of she having caught fire accidentally. He submitted that, the trial court only considered the dying declarations said to have been made by Ujwala to Tolabai and Sonu and the dying declaration (Exh.17) recorded by the Executive Magistrate, Gavit, which implicated the appellants and the said Deepak. According to him, when there were conflicting dying declarations, the trial court could not have placed reliance on the dying declaration (Exh.17) recorded by Mr. Gavit and the oral dying declaration made to Tolabai and Sonu. 11. As against this, Mr. Godbharle, the learned APP for the respondent-State, submitted that the dying declarations at Exh.20 and Article 1, were not proved to have been made by Ujwala. He apl356.11 -9- submitted that neither Thakur was examined as a witness nor the police officer, who recorded the declaration marked Article “A”. He submitted that, therefore, the trial court had not taken those declarations into consideration and that, the view of the trial court in that regard was proper and legal. 12 Apart from the contention that the fact of Ujwala having made dying declaration to the Executive Magistrate Thakur and to the police from Dhule, should have been taken into consideration, it is also contended by the learned counsel for the appellants that even the dying declaration (Exh.17) made to Gavit and the oral dying declaration made by Ujwala to Tolabai and Sonu, are not consistent. According to him, the version in these dying declarations was not uniform and that, even if only these dying declarations were to be taken into consideration, it would be difficult to base a conviction thereon, in the absence of any other evidence against the appellants. 13. For the time being, we may keep aside the dying declaration recorded by the Executive Magistrate Shri Thakur and the dying declaration recorded by the police from Dhule police station, as the question whether they can be looked into for ascertaining what was the version of Ujwala, as reflected therein, or for any other purpose, is of some importance, needing discussion on principles of criminal apl356.11 -10- jurisprudence and related legal aspects. We may, therefore, first examine the dying declaration recorded by Mr. Gavit (Exh.17) and the oral dying declaration made by Ujwala to Tolabai and Sonu. 14. In the dying declaration made to Gavit (P.W.2), Ujwala has not implicated her husband Deepak, at all. Undoubtedly, Ujwala did implicate the appellants by giving specific roles to them viz. the role of bringing kerosene bottle and pouring the kerosene therein on the person of Ujwala to the appellant No.2-Shobha, and the role of lighting the matchstick and setting her on fire to the appellant No.1-Chandar. Ujwala also stated that her grand-mother, Jijabai extinguished the fire. She specifically stated, that her complaint was against her mother-in- law – Shobha-the appellant No.2 and her father-in-law – Chander- appellant No.1. 15. As regards the dying declaration made to Tolabai, Tolabai stated that, she, her sister and her son, went to the Civil Hospital on learning about the incident from Suresh Fasge and that on going there, she asked Ujwala as to how she had suffered the burn injuries. According to her, Ujwala told her that her (Ujwala’s) mother-in-law had poured kerosene on her (Ujwala’s) person and her (Ujwala’s) father-in- law, had set her on fire. Ujwala also told Tolabai that she was set on fire by her in laws, because Ujwala’s parents had failed to pay them apl356.11 -11- cash amount as per the demand of the appellants. Now, in this dying declaration also, Ujwala did not implicate her husband Deepak. 16. The version of Ujwala’s brother-Sonu (P.W.4) regarding the Ujwala’s dying declaration is different. It appears from the evidence of Sonu that Ujwala made a oral dying declaration to Tolabai, when Tolabai and this witness were altogether. Thus, the dying declaration of Ujwala, which is spoken about by Tolabai and Sonu appears to be one and the same. However, the version of Tolabai and Sonu, as to what Ujwala stated, is not the same. According to Sonu, Ujwala implicated her husband also, and that she told that her husband Deepak-had caught hold of her when her mother-in-law (appellant No. 2) had poured kerosene on her person and her father-in-law (appellant No.1) had set her on fire. Sonu attributed to Ujwala, statements containing details which Tolabai never mentioned in her evidence. According to Sonu, Ujwala also stated that she was threatened by her in laws that she should not disclose the incident to police, otherwise, the in-laws would kill Sonu and Tolabai; and that Ujwala was also threatened by her in-laws that she would not be given medical treatment by them in case she disclosed the incident to the police. Now, this statement of Ujwala :- viz-about the threats given by in-laws is not found in the evidence of Tolabai. If Tolabai and Sonu are both speaking about the same dying declaration, which appears to be the apl356.11 -12- case, the omission of Tolabai to state about these details is significant and needs to be taken into consideration while appreciating the evidence of Sonu. If, on the other hand, it is assumed that Tolabai and Sonu are speaking about two different dying declarations, then it would mean that there were variations in the statements made by Ujwala and that there were gradual improvements in her statement. 17. Since the evaluation of a dying declaration would depend on how reliable the witnesses, who say that such a declaration was made to them, appear to be, a deeper scrutiny of the evidence of Executive Magistrate Gavit (P.W.2) and the evidence of Tolabai (P.W.3) and Sonu (P.W.4) becomes unavoidable. 18. Tolabai (P.W.3), in her evidence, has stated about the demand by the appellants to Ujwala for an amount of Rs.10,000/-, to be brought from the parents of Ujwala for enabling Deepak to purchase a Rickshaw. She has mentioned that she had gone to Ujwala’s house at Chalisgaon and that the appellants refused to send her with Tolabai to Nashik. Tolabai states that, at that time, the appellants threatened her (and also Jijabai, P.W.9) that they would set Ujwala on fire, if the money was not paid to them by Tolabai and her husband. She also speaks of Ujwala having told her that she (Ujwala) was set on fire by her in laws, as Ujwala’s parents (i.e. Tolabai and her husband) had apl356.11 -13- failed to pay cash amount to the appellants as per their demand. However, Tolabai did not lodge any report with the police immediately but waited till the next date. In the cross examination, it was revealed that the marriage between Ujwala and Deepak was settled by Tolabai’s maternal uncle Chinga, acting as a middleman. Tolabai however, said that she did not disclose to Chinga, at any time, that Ujwala was being subjected to cruelty by her in-laws. It is also revealed that Tolabai stayed in the house of the accused persons throughout the day of 5.3.2007 and also in the night. It is also revealed that the said Chinga was also present at Chalisgaon on 5.3.2007. 19. The conduct of Tolabai in not reporting the matter to the police immediately on learning about the incident from Ujwala and her non mentioning to Chinga about the harassment caused to Ujwala by the in laws, is not natural. It is difficult to believe that the appellants would threaten Tolabai on 5.3.2007 that if the money would not be paid to them, they would set Ujwala on fire and it is still more difficult to believe that Tolabai still would not do anything about it and even would not report this to Chinga – if not to the police. It is difficult to believe, that in spite of such threats, Tolabai would calmly go back to Nashik, leaving Ujwala in the danger of being killed. apl356.11 -14- 20. Tolabai admitted in the cross examination that the dying declaration recorded by Gavit was at her instance and also admitted that she was aware that the statements of Ujwala were recorded by the Executive Magistrate and by the police before that. However, inspite of this, she denied that she was aware that Ujwala had made a statement that she had caught fire accidentally. It is difficult to believe this denial as true. When she was aware that two statements of Ujwala were recorded,--one by the police and one by an Executive Magistrate--and when she insisted on recording another statement of Ujwala, as admitted by her, it is obvious that she did so, because she was not satisfied with the earlier statements of Ujwala, as were recorded. It is a matter of common sense that without knowing the contents of those statements, she could not have insisted on getting another statement of Ujwala recorded. 21. After carefully considering the evidence of Tolabai, it does not appear that she can be trusted as a wholly reliable witness, so that her evidence could be accepted without feeling the necessity of any independent corroboration. 22. Coming to the evidence of Sonu (P.W.4), it may be recalled that he has said about Ujwala having made certain statements, which Tolabai had not said, as having been made by Ujwala. According to apl356.11 -15- him, Ujwala also told him and others that she was threatened by her in-laws that she should not disclose the incident to the police, as, otherwise they (in-laws) would kill her brother and Tolabai. Interestingly, in his statement recorded by the police, this part is missing. It is further interesting to note that the Investigating Officer, Suresh Jadhav (P.W.8), claimed that Sonu had stated him so, though it did not appear in the record of Sonu’s statement, made by him in the course of investigation. It is not possible to accept that Sonu had indeed told so to P.I. Jadhav. Had it been told, Jadhav would not have failed to record the same. It is because this statement viz. that Ujwala was threatened by the accused persons that she should not disclose the real incident as otherwise her parents would be killed, was very significant and provided a reason for earlier giving a history of accidental fire. That, this aspect is crucial, is known to Sonu, is clear from the fact that he said so in his evidence. The Investigating Officer’s claim that Sonu had said so, though it does not find place in the record of Sonu’s statement made by the Investigating Officer, is nothing but a feeble attempt to overcome the effect of this omission on the reliability of this part of Sonu’s evidence and exposes the Investigating officer and indicates that he is determined to support the prosecution version, as put forth, at any cost. The Investigating Officer has gone to the extent of exposing himself to a possible criticism of having failed to record a vital aspect, in the statement of a crucial apl356.11 -16- witness. Be that as it may, the ‘memory’ of the Investigating Officer cannot be trusted in the absence of a contemporaneous record corroborating his claim. If the investigating officer did not record this in the statement of Sonu, though Sonu had stated so, the reason could be that it was thought to be insignificant by him; and if at that time he did not think it significant, there was no special reason for him to remember while giving evidence, that Sonu had stated so to him. Considering this, it is difficult to rely on this part of Sonu’s evidence. 23. Dying declaration is a statement of a person, who is dead and therefore, cannot be examined as a witness. The truth of the statement can be vouched only by that person i.e. the declarant and not by the witness to whom it was made. The witnesses can only say that such a statement was made by the dying person. Therefore, to hold a dying declaration as reliable, the Court must be satisfied regarding two aspects, viz, that witnesses, who say that the deceased made a particular statement are reliable and trustworthy, and further, the version of the deceased, as reflected in the said statement i.e. dying declaration, is also reliable and trustworthy. In case of oral dying declaration, of which no record has been made by the concerned witness, it would be still more difficult to place implicit reliance on the dying declaration, because the accuracy of the statement, made by the deceased, may be affected in the re-production of it, by the witnesses. apl356.11 -17- 24. In this case, Tolabai and Sonu are the near ones of Ujwala and obviously they had overcome by a feeling of shock and grief because of unnatural death of Ujwala. It would be a natural reaction on their part to try to put forth some explanation as to how the things had happened. If all these factors are taken into consideration and their evidence is analyzed on an objective basis, it would be difficult to believe that what they have said, must be true. There is therefore, a need to see whether their evidence is corroborated by some other independent evidence. 25. Coming to the dying declaration recorded by Gavit (Exh.17), it has been noticed, that it materially differs from the oral dying declaration said to have been made by Ujwala to Tolabai and Sonu. In this dying declaration, Ujawala did not mention anything about the demand of money by appellants, which was supposed to be the cause for setting her on fire, as per the version projected by Tolabai. Apart from the fact that it materially differs from the dying declaration made by Ujwala to Tolabai and Sonu, there are also some other infirmities in the evidence regarding that. Admittedly, this dying declaration came to be recorded in peculiar circumstances : viz-after two dying declaration-one by Thakur and the other by policeman from Dhule Police Station-had been recorded and after Tolabai had demanded, apl356.11 -18- being dissatisfied with those dying declarations, that another may be recorded. This was disclosed to Gavit, and it was quite obvious to him as to what type of dying declaration would satisfy Tolabai and the investigating agency. Though this by itself, would not mean that Gavit recorded a dying declaration falsely, this aspect needs to be taken into consideration while appreciating evidence in respect of the dying declaration recorded by him. 26. In his cross examination, Gavit claimed that he had put a question to Ujwala, whether her dying declaration had been recorded prior to the statement, which Gavit was going to record. He also said that Ujwala disclosed about recording of one dying declaration prior to it. He however, had to admit that he had not mentioned about this; viz. about the first dying declaration, in the dying declaration (Exh.17) recorded by him. He also had to admit that the questions and answers about the previous dying declaration are not recorded in the dying declaration (Exh.17) recorded by him. Gavit, who was expected to record the dying declaration truthfully and accurately, has not thought it fit to clarify why he did not record it verbatim. Moreover, it does not stand to reason that Gavit would ask Ujwala