1 Criminal Appeal No.425 of 2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.425 OF 2009 1. Hameed S/o.Maheboobsaab Qureshi, Age-25 years, Occu-Nil, R/o.Barul, Tq.Kandhar, Dist. Nanded 2. Gausiyabegum w/o.Maheboob Qureshi, Age-50 years, Occu-Nil, R/o.As above APPELLANTS VERSUS The State of Maharashtra RESPONDENT Mrs.S.S.Jadhav, learned counsel for the appellants. Mrs.R.K.Ladda, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 27/01/2011 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. The appellants have questioned the correctness of their conviction u/s. 302 r/w. 34 of IPC for which they were sentenced to suffer life imprisonment and to pay fine in the sum of Rs.2,500/-, each with default stipulation of undergoing further rigorous imprisonment for one month, by the Ad-hoc Additional Sessions Judge, Kandhar vide his judgment and order dated 05/08/2009 in 2 Criminal Appeal No.425 of 2009 Sessions Case No.5/2009. 2. Such of the facts as are necessary for the decision in this appeal can be summarized as follows : (a) On 07/10/2008, an intimation (Exh.29) was received from Adhar Hospital, Shivaji Nagar, Nanded in Shivaji Nagar Police Station Nanded at about 12.05 noon that one female by name Mrs. Rabbana Hameed Qureshi had sustained burn injuries and admitted in the hospital for medical treatment. Accordingly, P.S.O., Shivaji Nagar Police Station directed A.S.I. Ramesh Dattatraya Suryakar (P.W.No.1) to visit Adhar Hospital and to record the statement of the victim lady. The intimation was registered in Adhar Hospital as M.L.C.No.17/2008. Accordingly, P.W.No.1 A.S.I. Ramesh Suryakar reached in Adhar Hospital and contacted Dr.Sanjay Sahebrao Kadam (P.W.No.5) who pointed out victim Rabbana to him. After Dr. Kadam certified that Rabbana was in a fit condition to give her statement, A.S.I. Ramesh Suryakar recorded her statement/dying declaration at Exh.21 and forwarded the same to P.S.O. Shivaji Nagar Police Station, Nanded. He had also addressed a letter of request (Exh.22) to Special Judicial Magistrate Shri.Pundlik Nagorao Zunjare (P.W.No. 6) to record dying declaration of the victim Rabbana. (b) P.S.I. Shitalkumar Ramnath Ballad (P.W.No.7) attached to Shivaji Nagar Police Station, registered an offence vide ‘0’ number in his police station on the basis of statement of victim for an offence 3 Criminal Appeal No.425 of 2009 punishable u/s. 307, 504 r/w. 34 of The IPC. As the said offence took place in the jurisdiction of another police station, i.e. in the jurisdiction of Osmannagar Police Station, he forwarded the statement of victim Rabbana (Exh.21) alongwith covering letter to Osmannagar Police Station. He also reported the matter to Dy.S.P.Kandhar. (c) After receipt of request letter (Exh.22) at 1.35 p.m., Pundlik Nagorao Zunjare (P.W.No.6) went to Adhar Hospital, Shivaji Nagar, Nanded. In the hospital, after the victim was examined by Dr.Sanjay Kadam and certified that she is in a fit condition to give her statement, P.W.No.6 Zunjare recorded statement/dying declaration (Exh.31) of Rabbana. The statement was prepared in triplicate. He forwarded original statement to Chief Judicial Magistrate, Nanded in sealed envelope, one copy to the concerned police officer and kept the third copy with him. (d) A.P.I. Satishkumar Deorao Tak (P.W.No.9), attached to Osmannagar Police Station, Nanded, on receipt of Exh.21, statement of victim Rabbana and other documents alongwith covering letter at Exh.42, registered an offence vide CR No.75/2008 for an offence punishable u/s. 307 r/w. 34 of The IPC against the appellants. Then P.W.No.9 himself undertook the investigation of the said crime. On the same day, he visited the spot of incident at village Barul Tal.Kandhar. The place was shown to him by one Anil Tompe. In 4 Criminal Appeal No.425 of 2009 presence of witnesses, he drew spot panchnama Exh.16. From the spot, he had seized burnt pieces of sarree, blouse, one can of kerosene, one match box and some pieces of partly burnt fire wood. On the same day, he recorded statements of some witnesses including statement of Qayyum Fazalkhan Pathan (P.W.No.2) and others. On the next day, he recorded some more statements including the statement of witness Babumiya Abbasmiya Qureshi (P.W.No.3) father of the victim, Santosh Kamaji Kapale (P.W.No.4), in whose vehicle, victim was taken to Adhar Hospital. On that day, he came to know that the victim succumbed to her injuries. Then he went to Adhar Hospital and drew inquest panchnama Exh.15. Then the dead body was referred to Government College, Nanded for post mortem alongwith requisite documents. Report of post mortem is at Exh.17. On 07/10/2008, appellant/accused came to be arrested under arrest panchnama at Exh.53 and at Exh.54. After demise of Rabbana, section 302 of The IPC was added in the said crime. On 04/11/2008, seized property during the investigation was forwarded to the Chemical Analyser alongwith covering letter Exh.54, through carrier Shivaji Sakharam Ahankare (P.W.No.8). Request letter was also addressed to Tahsildar to prepare sketch of scene of offence. On completion of investigation, charge sheet was filed before J.M.F.C. Kandhar. 3. On committal of the trial to the Court of Sessions, learned Trial Court framed charge against the appellants at Exh.19 for an offence 5 Criminal Appeal No.425 of 2009 punishable u/s. 302 r/w. 34 of The IPC, to which appellants pleaded not guilty and claimed to be tried. During the trial, prosecution has examined in all 9 witnesses to prove the charge against the appellants. On appreciation of the evidence led by the prosecution, learned Trial Court held that the appellants are guilty of the charge and convicted them as stated above, which conviction and sentence is questioned in this appeal. 4. For better appreciation of the rival submissions of learned counsel for appellants and that of learned A.P.P. for State/respondent, it is necessary to advert to the evidence of material witnesses examined before the Trial Court. 5. Before Trial Court, appellants have admitted inquest panchnama Exh.15, spot panchnama Exh.16, post mortem notes Exh. 17 u/s. 294 of The Cr.P.C. Contents of inquest panchnama (Exh.15) and post mortem notes (Exh.17) established that the death of the victim was caused due to 100% burn injuries. In the post mortem report, it is opined by the Medical Officer attached to Medical Hospital, Nanded that the cause of death was due to cardio- respiratory arrest due to shock due to sup. to deep 100% burns, which clearly indicates that death of deceased victim is an un- natural death. Here, it is to be noted that every un-natural death will not amount to murder unless it is established that said death is homicidal death and caused at the hands of appellants/accused. 6 Criminal Appeal No.425 of 2009 6. It is in the evidence of Dr.Sanjay Kadam (P.W.No.5) that he run Multi-Specialty Hospital by name Adhar Hospital at Nanded. On 07/10/2008, Mrs.Rabbana Hamid Qureshi was admitted in his hospital, who had sustained burn injuries. Immediately after admission of victim, he started treatment. Thereafter, he gave written intimation Exh.29 to Shivaji Nagar Police Station. He had further stated that on that day, at about 3.00 p.m., Special Judicial Magistrate recorded statement (Exh.31) of Mrs.Rabbana. Before recording of the statement of the victim, he had examined the victim and put an endorsement to that effect on the statement of Mrs.Rabbana (Exh.31). He has further stated that Rabbana expired on 08/10/2008 while undergoing medical treatment. Accordingly, he informed Shivaji Nagar Police Station by his letter at Exh.30. He had stated in his cross examination that necessary record is maintained in the hospital since the admission of the patient till the patient get discharge from the hospital. As the witnesses brought the requisite record regarding victim Rabbana at the time of recording of his evidence, the witness was allowed to go through the hospital record while facing the cross examination. On perusal of hospital record, he has stated in his further cross examination that on 07/10/2008, one Waheed Qureshi R/o. Village Barul had brought Rabbana in Adhar Hospital. He has further stated that practice was followed in his hospital to question the patient about the history of injuries sustained or the illness and the history given by the patient 7 Criminal Appeal No.425 of 2009 concerned came to be recorded in the hospital record. He has further stated that Rabbana was also questioned by him at the time of her admission, to which Rabbana disclosed that she has sustained burn injuries while she was cooking. He has further stated in his cross examination that Rabbana was admitted in the hospital at about 11.45 a.m. or so. He has further stated that Rabbana has sustained 100% burn injuries. He had further stated that the patient sustained cent percent burn injuries, and having severe pain and due to such pain, the patient used to cry in agony. In deep burns, there is less pain as compared to superficial burns. He had further stated that he had given non sedative analgesic to the patient and also given injection of Voveran to Rabbana. He had further stated that Rabbana was under treatment and I/V fluid was given to her when her statement was recorded by Mr.Zunzare. He had further stated that Rabbana was a Muslim woman. She was questioned in Hindi language to which Rabbana also replied in Hindi. Even though he claimed that he was present throughout recording of statement of Rabbana by Mr. Zunzare, he was unable to recollect in which language, her statement was recorded by Mr. Zunzare. He had denied the suggestion that Rabbana was not in a fit condition to give her statement and he had put his endorsement on the blank pages on which latter on statement of Rabbana Exh.31 was recorded. He has further stated in his cross examination that he was also present when P.W.No.1 Ramesh Suryakar recorded statement of Rabbana and at that time, she was conscious and in a fit condition 8 Criminal Appeal No.425 of 2009 to give her statement. At that time also Rabbana was under treatment and I/V fluid was given to her. He had denied the suggestion that he had put endorsement on the blank papers on which latter on dying declaration of Rabbana was recorded by P.W.No. 1 at Exh.21. 7. It is in the evidence of Shri.Ramesh Suryakar (P.W.No.1) that on 07/10/2008, he was serving as A.S.I. and was attached to Shivaji Nagar Police Station, Nanded. On that day, while he was on petrolling duty, at about 2.00 p.m., he received call from police station. In the police station, P.S.O. Informed him that intimation registered as MLC No.17/2008 was received from Adhar Hospital about admission of Rabbana as she has sustained burn injuries and he was directed to visit Adhar Hospital and to record dying declaration of Rabbana. He has further stated that accordingly he went to Adhar Hospital and contacted Dr.Sanjay Kadam (P.W.No.5) who introduced Rabbana to him and opined that he can record statement of Rabbana. Accordingly, he recorded statement of Rabbana which is at Exh.21. While proving the contents of the statement at Exh.21, he had stated that, Rabbana told him that in the morning, she was doing the household work. Her husband and her mother in law, the appellants were abusing her and saying that she did not woke up early in the morning and do not attend the household work. Rabbana had further stated before him that at that time, she asked her husband and mother in law as to why they were 9 Criminal Appeal No.425 of 2009 harassing her every now and then. Rabbana further told that then her husband and mother in law caught hold her, her husband asked his mother to caught hold her. Her husband took container of kerosene, poured kerosene on her person and put her on flames. After this statement was recorded, it was readover to her, of which she admitted the contents. He has further stated that doctor concerned was present through out when the statement of Rabbana was recorded. He had stated in his cross examination that he had been to Adhar Hospital at about 2.15 p.m. alongwith writer Police Constable Naim Pathan. Father of Rabbana was present in the hospital. He had further stated that he had not obtained written endorsement of Dr.Kadam on the dying declaration of Rabbana. He had further stated in his cross examination that he had recorded statement of Rabbana in Marathi language while she gave her statement in Hindi language. He had further admitted in her cross examination that it is not mentioned in the statement of Rabbana that “after Rabbana was caught hold by her husband and her mother in law, her husband released her, but asked his mother to caught hold her” He had denied that the statement was in the handwriting of his writer. He had further admitted in his cross examination that while he was recording statement of Rabbana, Dr.Kadam was attending other patients. He had further stated that after he returned to police station, he wrote letter at Exh.22 to Shri.Zunzare, on which he has 10 Criminal Appeal No.425 of 2009 mentioned the timing as 12.35 hours. He had denied that dying declaration/statement Exh.21 was not recorded as given by Rabbana. Dying declaration Exh.21 do not bear thumb impression of Rabbana. He had denied that the thumb impression on dying declaration was not of Rabbana. He had further denied that dying declaration was recorded as per say of father of Rabbana and Rabbana was not in a condition to give her statement at Exh.21. 8. It is in the evidence of P.W.No.6 Pundlik Nagorao Zunjare that at the relevant time, he was working as Special Judicial Magistrate. On 07/10/2008, at about 1.35 p.m. or so, he received letter Exh.22 from Shivaji Nagar Police Station, requesting to record the dying declaration of Mrs.Rabbana, who was admitted in Adhar Hospital. Then he went to Adhar Hospital alongwith P.W.No.1 Ramesh Suryakar and contacted Dr.Kadam. Dr.Kadam introduced Rabbana to him. On his asking whether Rabbana is in a condition to give her statement, Dr.Kadam examined Rabbana and certified by putting written endorsement that Rabbana is conscious and mentally fit to give her statement. Then he put some preliminary questions to Rabbana to ascertain her condition and found that she is fit to give her statement. Then he recorded statement of Rabbana. He had further stated in his evidence that Rabbana told him that incident took place on 07/10/2008 at about 10.00 a.m. or so at her residential house. At that time, she was busy in household work. Her mother in law, father in law and her husband used to harass her 11 Criminal Appeal No.425 of 2009 regularly on the count that she could not attend household work properly. On the day of incident, they abused her and assaulted her. Her mother in law caught hold her. Her husband poured kerosene on her person and set her on fire. Her entire body caught with flames and she sustained cent percent burn injuries. She has further stated that her husband, mother in law and elder brother brought her in Nanded for treatment. Thereafter, the contents of the statement were read over to Rabbana, to which she admitted as true and correct, and then obtained her thumb impression on her statement. This dying declaration is at Exh.38. He has further stated that Dr.Kadam has put his written endorsement at Exh.31 and 32 before and after the statement of Rabbana was recorded. He has stated in his cross examination that he is serving as auditor in Maharashtra Jivan Pradhikaran, Nanded, and his office is situated at the distance of 1 km. from Shivaji Nagar Police Station and when he left the office to record the statement of Rabbana, he has not obtained prior permission of his superior officers. He had further stated that he had put question no.1 and 2 at Exh.38 so as to ascertain mental condition of Rabbana. He had further stated that he had not made any efforts to ascertain whether Rabbana is able to speak and understand Marathi language clearly. He had further stated that when he had recorded statement of Rabbana, I/V fluid was given to her, and she was calm and quite. He has denied suggestion that dying declaration of Rabbana at Exh.38 was not recorded as statement given by her. He had further denied that 12 Criminal Appeal No.425 of 2009 Rabbana was not in a fit condition to give her statement at Exh.38 and Exh.38 was prepared as per say of relatives of Rabbana. 9. We have heard learned counsel for appellants and learned A.P.P. for State. Learned A.P.P. supports the judgment of conviction recorded by the Trial Court and prayed for dismissal of the appeal. 10. During the course of submissions across the bar, it is urged by the counsel for appellants that even though the entire case of the prosecution is based on the dying declaration recorded by P.W.No.1 Ramesh Suryekar first in time at Exh.21 and recorded by P.W.No.6 Pundlik Zunzare at Exh.38, still this is a case of multiple dying declarations and the case history given by the victim Rabbana to P.W.No.5 Dr.Sanjay Kadam, at the time of her admission in the hospital required to be considered as the oral dying declaration first in time given by the victim to Sanjay Kadam, who has treated her. It is also brought to our notice from the evidence of Dr.Sanjay Kadam that, Rabbana was not brought and admitted in Adhar Hospital by either of the appellants, but as per his evidence and the hospital record, Rabbana was admitted in the hospital by one Wahid Kureshi. It is urged that admittedly this Wahid Kureshi was not examined. P.W.No.4 Santosh Kapale, in whose vehicle victim was shifted to hospital from her residence, even though is declared hostile, he has stated in his evidence that when victim Rabbana was shifted to the hospital, at that time she was telling that she has sustained burn 13 Criminal Appeal No.425 of 2009 injuries while she was cooking. In the premise, it is urged that the oral dying declaration given by Rabbana before Dr.Sanjay Kadam (P.W.No.5) plays a vital role as it is contrary to the oral dying declarations recorded by P.W.No.1 Ramesh and P.W.No.6 Pundlik. It is also urged that there are no allegations against the appellants about the illtreatment to the victim at the hands of parents of the deceased as father of the deceased by name Babumiya Kureshi was examined as P.W.No.3, who has not supported the case of the prosecution. Neighbourer Qayyum Fazalkhan Qureshi is examined as prosecution witness no.2, who has also not supported the case of prosecution. At the same time, our attention is drawn by the learned counsel for appellants towards the spot panchnama at Exh. 16 and the contents therein, and towards the internal page no.3 of the document, wherein there is mention about finding of plastic can near the fire place where 4 pieces of partly burnt firewood were also found, which according to learned counsel for appellants supports the history given first in time by victim Rabbana before Dr.Sanjay Kadam. It is also urged that it is nobody’s case that Rabbana was either tutored or forced to give such a statement before Dr.Sanjay Kadam at the time of her admission in the hospital. It is also urged that even though it is stated by P.W.No.6 Special Judicial Magistrate while proving the contents of the dying declaration recorded by him that she was harassed by her father in law, mother in law and husband, but there is no reference about the harassment at the hands of father in law in the dying declaration recorded by him. It is 14 Criminal Appeal No.425 of 2009 also brought to our notice that there is vital discrepancy between the written dying declaration first in time recorded by P.W.No.1 Ramesh Suryakar at Exh.21, wherein she has not stated that she was brought in the hospital by her husband and by her mother in law alongwith her brother, on the contrary, it is the evidence of Dr.Kadam that she was brought in the hospital by Wahid Kureshi. Whether said Wahid Kureshi is brother or neighbourer or any other relative, nothing is on record, but there is not a single whisper about these appellants in the admission register. 11. At this juncture, it is useful to give the reference of the observations of the Supreme Court in the matter of Leela Srinivasa Rao versus State of A.P.(2004) 9 SCC 715. wherein it is observed that, ”having noticed the evidence on record and having noticed the inconsistency between the two dying declarations, we do not find it safe to base the conviction of the appellant on the basis of the second dying declaration.” It is noticed that there is material inconsistency between the two dying declarations recorded, first by the Magistrate and the second by the Head Constable. In the first dying declaration, name of some of the witnesses were not reflected, which were reflected in the second dying declaration, which was recorded after the span of some time. Hence, it is held that if the conviction is purely based on the basis of second dying declaration, which are inconsistent with each other, then it is not safe to base the conviction solely relying on the inconsistent dying declarations. 15 Criminal Appeal No.425 of 2009 12. Further it is useful to give the reference of the observations of the Apex Court in the matter of Sharda versus State of Rajasthan, (2010) 2 Supreme Court Cases 85. 24. In the case in hand, the conviction of the appellant is based on the last dying declaration, Ext.P-18, said to have been recorded in the presence of the Executive Magistrate. The principle on which dying declarations are admitted in evidence is indicated in legal maxim: “Nemo moriturus praesumitur mentire – a man will not meet his Maker with a lie in his mouth.” It is indicative of the fact that a man who is on a deathbed would not tell a lie to falsely implicate an innocent person. This is the reason in law to accept the veracity of her statement. It is for this reason, the requirements of oath and cross-examination are dispensed with. Besides, if the dying declaration is to be completely excluded in a given case, it may even amount to miscarriage of justice as the victim alone being the eye witness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. 25. Though a dying declaration is entitled and is still recognised by law to be given greater weightage but it has also to be kept in mind that the accused had no chance of cross examination. Such a right of cross examination is essential for eliciting the truth as an obligation of oath. This is the reason, generally, the court insists that the dying declaration should be 16 Criminal Appeal No.425 of 2009 such which inspires full confidence of the court of its correctness. The court has to be on guard that such statement of the deceased was not as a result of either tutoring, prompting or product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the aforesaid requirement and also to the fact that declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. 26. It is not an absolute rule of law that the dying declaration can not form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. In this regard, we may profitably quote the following para from State (Delhi Admn.) Versus Laxman Kumar (SCC pp.498-99, para 40). “40. We have also come to the conclusion that the High Court failed to take into account one material aspect while appreciating the evidence of the prosecution witnesses. It is a fact that Sudha had been burnt and according to the medical opinion that was to the extent of 70%. As the evidence shows,