APEAL-1432-03 1 Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1432 OF 2003 1. Nirmala Maruti Gunjal, ) Age : 22 years ) ) 2. Malanbai Ramesh Gunjal, ) Age : 45 years ) ) 3. Sakhubai Baban Shinde, ) Age : 65 years ) ) 4. Maruti Ramesh Gunjal, ) Age : 24 years ) ) All r/o. 6th Chawl, Behind Sanjay ) Nagar Zopadpatti, Deolali Camp, ) Taluka and District Nashik ) ... Appellants / ) (Orig. Accused Nos.1 to 4) Versus The State of Maharashtra, ) Through the Police Inspector, ) Deolali Camp Police Station ) ... Respondent Mr. Ganesh Gole with Mr. S.R. Pathak and Mr. A.R. Singh for the Appellants. Mrs. V.R. Bhosale, APP, for the Respondent-State. CORAM : V.M. KANADE & A.M. THIPSAY, JJ. RESERVED ON : 11 TH OCTOBER, 2011. PRONOUNCED ON : 7 TH DECEMBER , 2011. APEAL-1432-03 2 Dixit JUDGMENT {PER A.M. THIPSAY, J.} : 1. This Appeal is directed against the judgment and order dated 15th November, 2003, passed by the 5th Additional Sessions Judge, Nashik, in Sessions Case No.79 of 2003, convicting the Appellants, who were the accused in the said case, of offences punishable under Section 302 of the IPC read with Section 34 of the IPC, Section 451 of the IPC read with Section 34 of the IPC and Section 342 of the IPC read with Section 34 of the IPC. The learned Additional Sessions Judge, Nashik, sentenced the Appellants as follows : (i) For the offence punishable under Section 302 of the IPC read with Section 34 of the IPC – Imprisonment for life and a fine of Rs.1,000/- with a default sentence of R.I. for two months. (ii). For the offence punishable under Section 451 of the IPC read with Section 34 of the IPC – R.I. for one year and a fine of Rs.500/- with a default sentence of R.I. for one month. APEAL-1432-03 3 Dixit (iii). For the offence punishable under Section 342 of the IPC read with Section 34 of the IPC – R.I. for six months. The sentences were directed to run concurrently. 2. The Appellants, being aggrieved by the said judgment and order, have appealed to this Court. It would be convenient to refer to the Appellants, by the position held by them in the trial Court. 3. The prosecution case before the trial Court was in brief as follows : . Sangita Mahadu Deore – the deceased – had been residing in the rented premises belonging to the Accused No.2 Malanbai since about six months prior to 15th October, 2002. On 15th October, 2002, at about 8:30 p.m., Sangita had gone out for answering the call of nature. That, at that time, the Accused No.4 Maruti – who is the son of Accused No.2 Malanbai – came there and caught Sangita’s hand. The Accused No.4 Maruti tried to APEAL-1432-03 4 Dixit commit rape upon her. As such, Sangita shouted and on hearing her shouts, the Accused No.2 Malanbai and the Accused No.1 Nirmala, who is the wife of the Accused No.4 Maruti, came there. Though Sangita told them what had happened, Nirmala (Accused No.1) and Malanbai (Accused No.2) accused Sangita of having illicit relations with the Accused No.4 Maruti and blamed her for that. Nirmala (Accused No.1) and Malanbai (Accused No.2) caught hold of Sangita and dragged her to her (Sangita’s) house, from the spot. The Accused No.4 Maruti also went along with them. After Sangita was brought to her house, Malanbai (Accused No.2) poured kerosene over her body. Malanbai (Accused No.2) also gave a match box to Nirmala (Accused No.1) and told her to light a match stick. That, at that time, Accused No.3-Sakhubai came there and she instigated Nirmala and Malanbai (the Accused Nos.1 and 2) to kill Sangita. Accused No.3-Sakhubai gagged the mouth of Sangita and, therefore, Sangita could not shout. The Accused No.4 Maruti had, by this time, closed the door of Sangita’s house from inside. Accused No.1-Nirmala lit match stick and set Sangita on fire. Sangita cried for help. The occupants of the neighbouring houses gathered there. One of them covered Sangita with a blanket. Sangita came outside and, while she was standing on the otla of the house of the Malanbai APEAL-1432-03 5 Dixit (Accused No.2), Smt. Lilabai Ahire (PW-6) – sister of Sangita’s husband – came there. Sangita narrated the incident to Lilabai (PW-6). Lilabai (PW-6) noticed that all the accused were standing around Sangita. 4. Thereafter, Lilabai (PW-6) and the other villagers took the accused, as well as Sangita, to Police Station. Sangita was taken to Bytco Hospital, Nashik Road, by the Head Constable Rajendra Markad (PW-10). Rajendra Markad (PW-10) had given a report to the Special Judicial Magistrate Rafique Ahmed Fakir Mohd. Sayyed (PW-8), who came to Bytco Hospital. He got Sangita examined through Dr. Bhaskar Gaikwad (PW-7), the Medical Officer, who was on duty at that time. Thereafter, Sayyed (PW-8) recorded the statement of Sangita (Exhibit-40). A case was registered and investigation was carried out by PI Rajendra Pagar (PW-12). On 16th October, 2002, he visited Bytco Hospital, got Sangita examined from Dr. Shilpa Kale (PW-11), the Medical Officer, who was on duty, and, thereafter, recorded the statement of Sangita (Exh.58). 5. Sangita succumbed to the burn injuries on 16th October, 2002 at about 1:30 p.m. Inquest Panchnama (Exhibit-16) was drawn. Spot Panchnama APEAL-1432-03 6 Dixit (Exhibit-57) was also drawn and certain articles were seized from the spot. The accused were arrested. The dead body of Sangita was sent for post- mortem examination. The articles seized during investigation were sent to the Chemical Analyzer for analysis and opinion. Statements of several persons were recorded in the course of investigation. On completion of investigation, Charge-Sheet was filed, pursuant to which the accused were tried and convicted as aforesaid. 6. Mr. Gole, the learned Advocate for the Appellants/Accused, has contended that the judgment of conviction, as recorded by the Additional Sessions Judge, Nashik, is not in accordance with law. He submitted that whole of the prosecution case was based only on the dying declarations made by Sangita. He submitted that there were totally three dying declarations of Sangita, that had been brought on record, but none of these dying declarations are convincing or reliable. He also submitted that the version in these dying declarations is not the same and, that, all these dying declarations are inconsistent with one another. 7. Smt. V.R. Bhosale, the learned APP for the Respondent-State, on the APEAL-1432-03 7 Dixit other hand, submitted that in all the dying declarations, Sangita has implicated the accused persons. She submitted that there was no reason for discarding the dying declarations and, that, the conviction of the accused persons on the basis of the dying declarations is proper and legal. 8. We have carefully gone through the entire evidence – oral and documentary – adduced during the trial. We have also gone through the impugned judgment. 9. Before proceeding further, it may be mentioned that, that death of Sangita was caused due to burn injuries is not in dispute. The memorandum of the post-mortem examination (Exhibit-14) shows that Sangita had sustained 99% superficial to deep burn injuries. The cause of death, as opined by Dr. Wagle and Dr. Nikumbh, the Medical Officers who conducted the post-mortem examination, is cardio respiratory arrest due to shock due to 99% superficial too deep burns. Thus, that Sangita died an unnatural death due to burn injuries is undisputed. 10. It is true that there is no direct evidence about what the accused APEAL-1432-03 8 Dixit persons had done, in the nature of testimony of any eye witnesses. It is true that the case against the accused persons is based only on the dying declarations made by Sangita. 11. There are three dying declarations in this case. . The first in point of time is the oral dying declaration, allegedly, made by Sangita to Lilabai (PW-6). This was, allegedly, made immediately after the incident i.e. at about 8:30 p.m. on 15th October, 2002. However, its disclosure to the investigating agency was made only on the next date, after other dying declarations of Sangita were recorded. . The second dying declaration is one made to the Special Judicial Magistrate Shri Sayyed (PW-8), which was reduced into writing by Shri Sayyed (PW-8) (Exhibit 40). . The third dying declaration was made to the Investigating Officer Rajendra Pagar (PW-12) record of which was made in writing Exhibit-58 by him. It was at about 10:00 a.m. on 16th October, 2002. APEAL-1432-03 9 Dixit 12. It would be proper to examine the version of Sangita as appearing in these dying declarations. 13. Since the second dying declaration and the third dying declaration have been reduced into writing (Exhibit 40 & Exhibit 58 respectively), it would be proper to first consider Sangita’s version as appearing therein. The oral dying declaration made by Sangita to Lilabai (PW-6) not having been reduced into writing by Lilabai (PW-6) may require a little more elaboration and can be conveniently considered thereafter. 14. So far as the dying declaration made to the Special Judicial Magistrate Shri Sayyed (PW-8) is concerned, the same has been recorded between 11:40 p.m. to 11:55 p.m. on 15th October, 2002. The evidence relevant to this dying declaration – apart from the evidence of Shri Sauyed (PW-8) – is of Dr. Bhaskar Gaikwad (PW-7), who had made an endorsement on the record of this dying declaration that the patient was fully conscious and in a condition to give valid statement. However, instead of discussing the evidence of these witnesses, it would be better to straightway come to the version of APEAL-1432-03 10 Dixit Sangita, as appearing in the record of the said dying declaration (Exhibit-40). 15. The dying declaration was recorded in question and answer form. The record shows that Special Judicial Magistrate Shri Sayyed (PW-8) first explained to the patient that he had come to record the statement of the patient. The patient Sangita was then asked about the time, when she, reportedly, said that it was night time. She was asked whether she knew Marathi, to which she answered in affirmative and, thereafter, on being further questioned, gave her name, age and address. In reply to a question as to who were residing with her in her house, she answered as her husband, she herself and two children. She was then asked as to how she had sustained burn injuries and, that, she should state about it without being afraid of anyone. The reply given by her may be reproduced here : “vkt jk¥h 9 rs 9-30- ek÷;k ?kjh ekyu ckbZ vkf.k fueZykckbZ vkY;k- R;k nks?kkuh feGwu ek>;k vaxkoj jkWdsy Vkdy o fueZykckbZuh dkMh ykoyh o fu?kwu xsY;k-” . Translated in English, it would read thus : APEAL-1432-03 11 Dixit “that today at about 9:00 p.m. to 9:30 p.m., Malanbai (Accused No.2) and Nirmalabai (Accused No.1) came to my house. They both poured kerosene over my body and Nirmalabai (Accused No.1) set me on fire by a match stick and then they went away.” 16. Then the next question that was asked to her was what happened thereafter, to which Sangita replied that the persons from the lane extinguished the fire and then the sister-in-law of Sangita brought her to the Police Station and then to the Dispensary. She was then asked as to what was the reason for the said two accused having set her on fire, whereupon Sangita replied that Malanbai (Accused No.2) used to allege that Sangita had an affair with Malanbai’s son Maruti (Accused No.4) and, therefore, they had set her on fire. After asking some further questions, Sangita was asked whether she wanted to say anything more, to which she replied in negative. The statement was then read over to her, which she claimed to have understood and as having been recorded truly and correctly. However, thereafter, Sangita again said that there were three persons :- Malanbai (Accused No.2), Nirmala (Accused No.1) and Sakhubai (Accused No.3). 17. Now, coming to the dying declaration (Exhibit-58), apart from the APEAL-1432-03 12 Dixit evidence of Investigating Officer Rajendra Pagar (PW-12), who recorded the same, the evidence of Dr. Shilpa Kale (PW-11) is also relevant, in as much as, Dr. Shilpa Kale (PW-11) had examined Sangita before her statement was recorded and had certified that Sangita was conscious and in a state of giving the statement. This dying declaration (Exhibit-58) was recorded on 16th October, 2002 at about 10:00 a.m. This has not been recorded in question and answer form. The version of Sangita, as appearing in this statement, is a much detailed one, the substance of which is as follows : . That she used to reside as a tenant in the premises owned by Malanbai (Accused No.2) since about six months prior to the incident and, that, she had been residing there with her husband and two children. That, on 15th October, 2002, in the night, she was in her house with two children and her husband, who used to work on a Pav-Bhaji Cart, had gone out for the said work. That, as usual, Sangita went for easing herself in the open ground near her locality, when Maruti (Accused No.4) – son of Malanbai (Accused No.2) – suddenly came to that place and caught her hand. Since there was light, Sangita identified him and questioned him as to what he had done, whereupon he attempted to commit rape on her. Sangita then started APEAL-1432-03 13 Dixit shouting and attempted to rescue herself from him and, that, at that time, Maruti’s mother Malanbai (Accused No.2), Maruti’s wife Nirmala (Accused No.1) came there on hearing Sangita’s shouts and started asking Sangita as to what had happened. Sangita told them that Maruti (Accused No.4) caught her hand and had attempted to commit rape on her and, that, Maruti (Accused No.4) should be told by the said women not to behave in that manner. However, instead of advising Maruti (Accused No.4), Malanbai (Accused No.2) and Nirmala (Accused No.1) alleged that Sangita had an affair with Maruti (Accused No.4) and, that, she was spoiling Maruti (Accused No.4); and saying so, both of them started assaulting Sangita by fists and kicks. Maruti (Accused No.4) was there itself. The said two women dragged Sangita to Sangita’s house and while dragging, they were assaulting and abusing her. They were saying that “today Sangita should be finished”. When Sangita was dragged inside her house by the said two women, Maruti (Accused No.4) also came along with them and all started abusing Sangita. Nirmala (Accused No.1) had caught Sangita and, at that time, Malanbai (Accused No.2) went out and returned with a plastic kerosene bottle in her hand. While saying that ‘let us finish Sangita’, she poured the kerosene in the said bottle on the body of Sangita and at the APEAL-1432-03 14 Dixit same time gave a match box, which she was having in her hand, to Nirmala (Accused No.1) and asked Nirmala (Accused No.1) to set Sangita on fire. When Sangita started shouting, Sakhubai (Accused No.3) also came there and started saying that Sangita was exceeding limits and, that, she should be finished. Saying so, Sakhubai (Accused No.3) gagged the mouth of Sangita by one hand and held her tightly. Sangita was unable to shout because of the gagging. At that time, Nirmala (Accused No.1) lighted a match stick and set the saree, which Sangita was wearing, on fire. Sangita started shouting, when Maruti (Accused No.4) closed the door. Sangita caught fire fully. Due to her cries, persons in the neighbourhood assembled there and came inside the house. By that time, Sangita had been fully burnt and had fallen down. All the accused were in her house only. That, Sangita was unable to state who were the other persons from the neighbourhood, who had come there, as she did not know them. The accused persons were telling those persons that Sangita herself had poured kerosene over her person and had set herself on fire. Somebody put a chadar on the body of Sangita and Sangita came out of the house in that condition itself. While Sangita was standing on the otla of Malanbai’s house, Sangita’s sister-in-law Lilabai (PW-6) came to that place running and Sangita informed to her as to APEAL-1432-03 15 Dixit what had happened. Nirmala (Accused No.1) and Malanbai (Accused No.2), who were standing there, started telling Lilabai (PW-6) that Sangita should be taken to dispensary, whereupon Lilabai (PW-6) told them to help her. Nirmala (Accused No.1), Malanbai (Accused No.2) and Lilabai (PW-6) took Sangita to the Police Station, when the Police took Sangita to Bytco Hospital and got her admitted there. 18. It may be recalled that as regards the third dying declaration, there is no written record of the same. The evidence in that regard is of Lilabai (PW-6) only. 19. According to Lilabai (PW-6), on the day of incident, she and her family members were sleeping in her house after having dinner. That, at that time, this witness and her husband heard the noise of shouting coming from the direction of the house of Sangita and, therefore, they rushed there. This witness and her husband saw Sangita in a burnt condition. That, at that time, all the accused persons were standing there. Lilabai (PW-6) asked Sangita as to what had happened, when Sangita stated that the Accused No. 4 Maruti had attempted to commit forcible sexual intercourse with her at APEAL-1432-03 16 Dixit the place where villagers used to go for easing themselves and, that, at that time, Nirmala (Accused No.1) and Malanbai (Accused No.2) had come there and started beating her. According to Lilabai (PW-6), Sangita told her that Nirmala (Accused No.1) and Malanbai (Accused No.2) had pulled her, brought her to her house by beating her and, that, thereafter, Malanbai (Accused No.2) and Maruti (Accused No.4) had pushed her in the house. That, Sangita, further told her that Nirmala (Accused No.1) and Malanbai (Accused No.2) had beaten her severely in the house and had attempted to kill her. Sangita then told Lilabai (PW-6) that Malanbai (Accused No.2) had poured kerosene on her person and, that, Nirmala (Accused No.1) had set her on fire; and, that Sakhubai (Accused No.3) and Maruti (Accused No.4) were standing there by keeping the door of the house closed. That, the Accused No.3 Sakhubai had instigated (others) to kill Sangita. That, one Kalabai had tried to rescue Sangita by covering her with a bed sheet. That, Sangita was then taken to the Police Station and from there to the hospital. Lilabai (PW-6) has stated that on the next day, at about 1:30 p.m., Sangita died. Lilabai (PW-6) also said that she knew all the accused because they all used to reside in the same locality where Lilabai (PW-6) was residing. APEAL-1432-03 17 Dixit 20. In the cross-examination, it was revealed that the locality, where the incident took place, is a thickly populated locality. That, from the house of the accused, the house of one Venu is situated at a distance of about 5 ft. That, the house of one Shankar Pagare is situated on the eastern side of the house of the accused and the house of one Gokul is situated on the southern side of the house of the accused. Suggestions were given to this witness that there used to be frequent quarrels between Sangita and her husband Mahadu, but the witness denied the said suggestions. The suggestions that she was implicating the accused falsely and, that, actually, Sangita never told anything to this, were denied as false. 21. The trial Court has believed the dying declarations said to have been made by Sangita and convicted the accused persons solely on the basis of the said dying declarations. The trial Court itself has observed that the case of the prosecution rested solely on the dying declarations and, therefore, in our view, it is not necessary to discuss the other evidence that was adduced during the trial. 22. There was a conflict of judicial opinion with regard to the value of APEAL-1432-03 18 Dixit dying declaration as a piece of evidence. The conflict in that regard was set at rest by the judgment of the Supreme Court of India in the case of Kushal Rao Vs. State of Bombay, reported in AIR 1958 SC 22. In that case, Their Lordships specifically dealt with the evidentiary value of dying declarations. Their Lordships of the Supreme Court referred to a previous decision of the Supreme Court in the case of Ramnath Madhoprasad and others v. State of Madhya Pradesh, 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. The following observations from Ramnath’s case (supra) were reproduced by Their Lordships in the judgment in Khushal Rao’s case (supra) : “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.” APEAL-1432-03 19 Dixit 23. Their Lordships then mentioned the specific aspect which needed examination : “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.” 24. 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 declaration as a piece of evidence expressed by different High Courts, Their Lordships 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; 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; APEAL-1432-03 20 Dixit 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 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 APEAL-1432-03 21 Dixit 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.” 25. Their Lordships further observed that : “Hence, in order to pass the test of reliability, a dying