APEAL/372/2009 1 Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.372 OF 2009 Ashok Pandurang Jadhav, R/o. Shantivanpada, Ward No.2, Benapatti Sector, Vasai, Dist. Thane ... Appellant Versus The State of Maharashtra, (Vide C.R. No.I-50 of 2002 Regd. at Vasai Police Station) ... Respondent Ms. Ameeta Kuttikrishnan for the Appellant. Dr. F.R. Shaikh for the Respondent. CORAM : B.H. MARLAPALLE & A.M. THIPSAY, J.J. RESERVED ON : 13 TH APRIL, 2011. PRONOUNCED ON : 6 TH MAY, 2011. JUDGMENT {PER A.M. THIPSAY, J.} : 1. This Appeal is directed against the Judgment and Order passed by the Additional Sessions Judge, Palghar in Sessions Case No.143 of 2002, convicting the Appellant, who was the sole accused in the said case, of an offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs.1,000/- with a default sentence of R.I. for three months. The prosecution case before the trial Court was as follows : . The Appellant, (hereinafter referred to as “the accused”), was the second husband of Sangita Jadhav, the deceased. On 12th June, 2002, at about 10:30 APEAL/372/2009 2 Dixit p.m., the accused came home drunk. Sangita, at that time, remarked that the accused was not doing any work, and that he would only consume liquor and come home, on which the accused became angry. He, therefore, picked up a kerosene can, which was in the house, poured the kerosene contained therein on the body of the Sangita and set her on fire by a lamp which was burning in the house. Sangita caught fire. The accused tried to extinguish the fire. Neighbours assembled there. Sangita was taken to the Dispensary run by Vasai Nagar Parishad, by the accused and the neighbours. Sangita had sustained superficial to deep burn injuries almost all over her body. The Police came to know about the incident (it is not clear as to how they learnt about it). Jagannath Mane (PW-5) who was attached to Vasai Police Station as Head Constable at the material time, was asked by ASI Mhaskar, to record the statement of the victim and Jagannath Mane (PW-5), therefore, proceeded to the said hospital. Dr. Praful Vaidya (PW-1), who was on duty at that time, was contacted by Jagannath Mane (PW-5). After ascertaining from him that Sangita was in a position to give statement, Jagannath Mane (PW-5) recorded her statement (Exhibit-19) in which she stated that she had a quarrel with the accused over his not doing any work and consuming liquor, and that, therefore the accused became angry and that he poured kerosene contained in the small can in the house on her person and set her on fire by a lamp that was burning in the house. This statement was treated as the First Information Report. Mr. Mahendra Lad, Special Executive Officer, (PW-4), was called to the hospital for recording the statement of Sangita. Mahendra Lad (PW-4) also recorded her statement (Exhibit-30) in which Sangitabai stated that she had been set on fire by the accused. Further investigation into the matter was carried out by Vijaykant, API, (PW-8) attached to Vasai Police Station at the material time. APEAL/372/2009 3 Dixit . Sangita was, later on, shifted to Bhagwati Hospital at Borivali where she succumbed to the injuries on 14th June, 2002. Post-mortem examination on the dead body was performed and the cause of death was opined to be as “shock following 95% superficial to deep thermal burns-unnatural”. Spot panchanama was drawn on 13th June, 2002 and in the presence of Panchas Suresh Kolhe (PW-6) and one Ganesh Wayda, a kerosene can, a lamp and some burnt quilt (xksnMh) were seized under the Panchanama (Exhibit-37). The accused was arrested under a panchanama (Exhibit-39) with Jatin Tare (PW-7) and one Yusuf Memon, acting as Panchas. . On completion of investigation, a charge sheet was filed against the accused. The accused pleaded not guilty to the charge of an offence punishable under Section 302 of the IPC, which came to be framed against him and claimed to be tried. 2. The prosecution examined eight witnesses before the trial Court, all of whom, except Vijay (PW-2) and Vanita (PW-3), son and daughter of deceased Sangita, respectively, have been referred to above. Vijay (PW-2) claims to be an eye witness to the incident, whereas Vanita claims to be a witness in respect of the Dying Declaration made by Sangita, by gestures, indicating that the accused had poured kerosene over her. 3. The Cause of Death Certificate (Exhibit-46) issued by the Chief Medical Officer, Cooper Hospital and the notes of the post mortem examination (Exhibit-47) were admitted in evidence, by consent. 4. The defence of the accused, as reflected from the cross-examination of the prosecution witnesses and the answers given by him to the questions put to him during his examination under Section 313 of the Code of Criminal Procedure, is of denial. The accused admits the relationship between him and Sangita. According APEAL/372/2009 4 Dixit to him, on the day of the incident, he came home late in the night; and that, Sangita poured kerosene on her person and set herself on fire by taking out her clothes. According to the accused, he tried to extinguish the fire and took Sangita to the hospital at Vasai. Thus, the case of the accused is that Sangita had herself set her on fire. 5. After considering the evidence adduced before it, the trial Court held that the case against the accused was proved. The trial Court, in that regard, mainly relied on the Dying Declarations made by Sangita before Mahendra Lad (PW-4) and Jagannath Mane (PW-5). The trial Court held that these two witnesses had no motive to falsely implicate the accused and that the statements made by Sangita should be believed and accepted as true. 6. We have heard Ms. Ameeta Kuttikrishnan, the learned Advocate, who was appointed to defend the accused under the free legal aid scheme. We have also heard Dr. Shaikh, the learned APP, for the respondent-State of Maharashtra. We have gone through the entire evidence adduced before the trial Court. We have gone through the impugned judgment and order. 7. That Sangita died an unnatural death due to burn injuries is not in dispute. Even otherwise, there is sufficient evidence in that regard. The notes of the post mortem examination (Exhibit-47) show that Sangita had sustained 95% superficial to deep thermal burns. The cause of death has been opined to be ‘shock due to deep thermal burns’. Dr. Praful Vaidya (PW-1), who had examined Sangita immediately after her admission in the hospital, stated about the condition of Sangita and the certificate in respect of the injuries which Sangita had sustained, which had been issued by the said witness, has been tendered in evidence (Exhibit-22). It mentions that Sangita had sustained burns all over the body except right half of the face (98%). Even the accused does not dispute the APEAL/372/2009 5 Dixit fact that Sangita had caught fire and was taken to the Nagar Parishad Hospital at Vasai. Thus, the fact of sustaining burn injuries by Sangita and that her death was caused as a result of the said injuries, is not in dispute at all. 8. The only question is whether Sangita was set on fire by the accused, or whether she herself had set her on fire. The possibility of the fire having been caught in some other manner, i.e. accidentally, need not be considered in as much as that is not the case of anyone. 9. Since the case of the prosecution is based on the dying declarations made by Sangita to Mahendra Lad (PW-4), the Special Executive Officer, and to Jagannath Mane (PW-5), Head Constable of Police, the evidence of these witnesses needs to be carefully considered. The oral dying declaration made to Mahendra Lad (PW-4) was reduced to writing by him and that record has been tendered in evidence (Exhibit-30). Similarly, the oral dying declaration made by Sangita to Jagannath Mane (PW-5) was also reduced to writing by him and the record thereof has been tendered in evidence (Exhibit-19). Dr. Praful Vaidya (PW-1) is the Medical Officer in whose presence both the dying declarations were recorded. Therefore, his evidence also requires to be subjected to a thorough scrutiny. 10. Mahendra Lad (PW-4) has stated in his evidence, that on 13th June, 2002, he was called at the Nagar Parishad Hospital at Vasai, by the Police for recording the statement of Sangita Jadhav. That when he went there, the Medical Officer was present with Head Constable Jagannath Mane (PW-5). According to Mahendra Lad (PW-4), Sangitabai was in a position to speak and that he questioned her. Mahendra Lad (PW-4) does state that Sangita, on being asked by him, gave her name and address and when she was asked about the burns, she told Mahendra Lad (PW-4) that her husband had poured kerosene on her person APEAL/372/2009 6 Dixit and thereafter set her on fire by using a lamp. Mahendra Lad (PW-4) also stated that Sangita told him the cause of setting her on fire as ‘her objection to the behaviour of her husband i.e. the accused’. Mahendra Lad (PW-4) then recorded her statement and obtained her thumb impression thereon. He also signed the record made by him (Exhibit-30). The document at Exhibit-30 corroborates the oral evidence of Mahendra Lad (PW-4) and, indeed, shows that Sangita did state that the accused had poured kerosene over her person and had set her ablaze by a lamp. In the cross-examination of this witness, it is revealed that even before he recorded the statement of Sangita, Police had already told him that she had been set on fire by her husband. Mahendra Lad (PW-4) also stated, that prior to asking questions to Sangita, he had made certain enquiries with her son and daughter, who were present there. Mahendra Lad (PW-4) has also stated that the children of Sangita were present when he questioned Sangita. His evidence shows that when the statement of Sangita was recorded, Jagannath Mane (PW-5), children of Sangita (PW-2 & 3) and the Medical Officer (PW-1) were present. 11. The evidence of Jagannath Mane (PW-5) shows that on reaching the Nagar Parishad Hospital at Vasai, he saw that Sangita was having extensive burns. According to him, he made a report to the Medical Officer (PW-1), asking him whether the patient was in a position to make a statement and that the Medical Officer (PW-1) issued a certificate stating that the victim was in a position to give statement. Jagannath Mane (PW-5) then recorded the statement of Sangita. He did not specifically state in his evidence as to what Sangita stated before him but has simply said that he recorded her statement. The record of the statement (Exhibit-19) has been tendered in evidence. He has stated that the same bears the thumb impression of Sangita and the endorsement of the Medical Officer (PW-1). In the cross-examination, he has stated that he had personally gone to Shri Mahendra Lad (PW-4) to call him. According to him, first he recorded the APEAL/372/2009 7 Dixit statement of Sangita and thereafter Mahendra Lad (PW-4) recorded her statement. He has stated that when he reached the Nagar Parishad Hospital at Vasai, the children of the victim, the accused and some other relatives were present. He denied that either he or Mahendra Lad (PW-4) made any enquiry with the children of the victim. It was suggested to him, that he as well as Mahendra Lad (PW-4) were told by the Medical Officer (PW-1) that Sangita was in an unconscious state and that therefore he and Mahendra Lad (PW-4) made enquiries with Sangita’s children and relatives, which suggestion was denied. It was suggested to him that false statements, purporting to be of Sangita, were prepared on the basis of the information given by her children and relatives; that the fingers of Sangita had been totally burned and, therefore, no thumb impression of Sangita was obtained on any document, but these suggestions have been denied by him. 12. Dr. Praful Vaidya (PW-1) has stated that when he examined Sangita, he observed that she was well oriented and her general condition was moderate. According to him, she was conscious and, therefore, he issued a certificate to that effect (Exhibit-18). According to him, thereafter, the Police recorded the statement of Sangita in his presence (Exhibit-19). He has stated, that Sangita’s statement was recorded as per her say and her thumb impression was obtained thereon. According to him, he has ‘counter signed’ the said statement (Exhibit-19). He has identified the statement (Exhibit-19) as the same, when it was shown to him in Court. In the cross-examination, he has admitted that on Sangita’s statement (Exhibit-19), there is no specific mention that it was recorded in his presence. He has also admitted, that the person who had sustained burn injuries to the extent Sangita had sustained, would be in deep pain and that such person could not remain in a conscious state for a long time. He has denied the suggestion, that he had issued certificate regarding consciousness of Sangita only to help the Police. APEAL/372/2009 8 Dixit 13. Before proceeding to discuss the reliability of the evidence with respect to the said dying declarations, the evidence of other witnesses may be referred to. Vijay Kambli (PW-2), son of the deceased, was projected by the prosecution as an eye witness. His version in the examination-in-chief is that on the day of incident, a quarrel had taken place between Sangita and the accused in the night. According to him, thereafter, the accused went to drink liquor and Sangita was sleeping in front of the door. The version of this witness is that when the accused came back, he poured kerosene on the person of Sangita and set her on fire by a lamp. That Sangita then ran towards the road and the accused followed her with a bed sheet, for the purpose of covering her with the same. He has stated that when the incident took place, he was taking dinner in inner room. In the cross- examination, however, it was revealed that he had not seen the incident at all. What he stated in the cross-examination is as follows : “On the day of the incident at night time I have gone to Arun uncle to watch T.V. When I came in the front door after hearing the cries of my mother I saw that her second husband was keeping a blanket around her to estinguish the fire.” 14. Though the suggestion that he had not seen the incident of accused pouring kerosene over Sangita and setting her on fire has been denied by him, from his deposition reproduced above, it is clear that he had not seen the accused setting Sangita on fire and that he came on the scene subsequently. 15. Coming to the evidence of Vanita (PW-3), it may be observed that she also claimed to be a witness to the dying declaration made by Sangita “by gestures”. Vanita (PW-3) was not residing with Sangita and the accused, and she was residing somewhere else, where she was working. On learning about the incident, she came to the Nagar Parishad Hospital at Vasai and saw Sangita. According to APEAL/372/2009 9 Dixit her, when she questioned Sangita, Sangita told her, by gestures, that the accused was the perpetrator of the act and that he had caused injuries to her. In the cross-examination, she had admitted that Sangita was not in a position to speak. It may be observed that the trial Court has doubted the version of Vanita (PW-3) that Sangita told her, by gestures, that the accused had committed the crime. Thus, the dying declaration said to have been made by Sangita to Vanita (PW-3), by gestures, has not been believed by the trial Court and rightly so, in our opinion. 16. Suresh Kolhe (PW-6) is a Panch in respect of the spot-cum-seizure panchnama (Exhibit-37), which was drawn on 13th June, 2002. In his evidence, he gave the description of the house of Sangita and the condition of the same as witnessed by him. He speaks of a burnt bed sheet and one burnt saree, small lamp and kerosene can found lying on the floor etc., and about the seizure of the same by the police, in his presence under a panchanama. His evidence shows that the floor was wet. 17. The evidence of Jatin Tare (PW-7) merely shows that the accused was arrested on 13th June, 2002 at about 14:00 hrs. at the Police Station itself under a panchnama (Exhibit-39). His evidence is not of much consequence. 18. The trial Court, in paragraph 10 of the impugned judgment, recorded that it would be necessary to state the principles on the basis of which evidence in the form of dying declaration is admitted in a criminal trial and proceeded to record those principles. It would be appropriate here to consider the evidentiary value of a dying declaration, as a piece of evidence. There is no dearth of reported judgments of the High Courts and of the Supreme Court of India dealing with the acceptability of a dying declaration or declarations in a given case and in the facts and circumstances of that particular case. The legal propositions which can be APEAL/372/2009 10 Dixit enunciated from these authoritative pronouncements are well known. The law on this subject has been very ably stated by the Supreme Court of India in the case of Khushal Rao Vs. State of Bombay, reported in AIR 1958 SC 22. 19. In the case of Khushal Rao Vs. State of Bombay (supra), a Full Bench of the Supreme Court of India, specifically dealt with the evidentiary value of dying declarations. Their Lordships of the Supreme Court referred to a previous decision of the Supreme Court reported in AIR 1953 SC 420(E), wherein it was expressed that it was not safe to convict an accused merely on the evidence of dying declaration, without any corroboration. Their Lordships reproduced the observations appearing on page 423 of the said reported judgment as follows : “It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross- examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration. It is in this light that the different dying declarations made by the deceased and sought to be proved in the case have to be considered.” 20. Their Lordships then observed as follows : “We have, therefore, to examine the legal position whether it is settled law that a dying declaration by itself, can, in no circumstances, be the basis of a conviction.” 21. After extensively examining the provisions of Sec.32(1) of the Evidence Act and referring to various conflicting views with regard to the value of dying APEAL/372/2009 11 Dixit declaration as a piece of evidence expressed by different High Courts, Their Lordships laid down the following principles : “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; 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 observation, for example, whether there was sufficient APEAL/372/2009 12 Dixit 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.” . Their Lordships 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 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 APEAL/372/2009 13 Dixit above or from such other infirmities as may be disclosed in evidence in that case.” 22. It would be appropriate here to remind oneself that generally, there are two issues with respect to a dying declaration. The first one would be, whether the declaration was actually made. Naturally, this would be assessed on the basis of the evidence of the witnesses, who claim that such declaration was made and witnessed by them. There would be a question of accuracy of the record of such declaration, if made or maintained by such witnesses. If the evidence in that regard is satisfactory, the Court would come to a conclusion that a particular statement was, indeed, made by the deceased; but that the statement was, indeed, made, is not the end of the matter. The Court thereafter would be required to decide whether such statement made by the deceased was true. In other words, the fact of having made the statement and the truthfulness of the said statement are both required to be established before a declaration is termed as reliable. Now, for ascertaining the truthfulness of the statement of a dying person, the parameters, which are applied to the witnesses while judging reliability of their evidence, must be applied. The reliability of a version of a witness would depend on several factors including the opportunity available to a witness to know, or observe, the facts correctly and his physical and mental condition at the time of making the statement in question. 23. Dr. Praful Vaidya (PW-1) has not made any endorsement to the effect that the victim was conscious and was in a fit mental state to