1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 422 OF 2008 Sitaram s/o Natha More Age 45 years, Occ. Agriculture R/o. Khandala, Tal. Shrirampur District Ahmednagar ...Appellant Versus The State of Maharashtra (copy to be served on the Public Prosecutor and Government Pleader High Court, Bench at Aurangabad) ...Respondent ..... Mr. A.B. Kale, advocate for the appellant Mr. N. R. Shaikh, A.P.P. for respondent . ..... CORAM: S.B. DESHMUKH & S.S. SHINDE, JJ. DATE OF RESERVATION OF JUDGMENT : 11.06.2010 DATE OF PRONOUNCEMENT OF JUDGMENT : 17 .06.2010 ORAL JUDGMENT (PER SHINDE, J.) 1 This appeal is filed challenging the final judgment and order dated 17.6.2008, passed in Sessions Case No. 19 of 2007, by the 2 learned Additional Sessions Judge, Shrirampur, District Ahmednagar. 2 The application for leave to appeal was allowed by this Court, thereby appeal was admitted. However, the application for bail came to be rejected. Originally there were three accused persons. However, the Additonal Sessions Judge, Shrirampur, by the impugned judgment, has acquitted other two accused persons i.e. accused Nos. 2 and 3 and against the said acquittal, application filed by the State for leave to appeal has been rejected by this Court on 8.4.2009. Therefore, the present appeal is filed only on behalf of original accused No.1 Sitaram Natha More. 3 All three accused persons were charged for offences punishable under Sections 302 r.w. 34 of I.P.C. It is the case of the prosecution that deceased Alka Sitaram More wife of accused No.1 i.e. present appellant was residing alongwith accused No.1 and two children viz. Rajendra and Balu in the house allotted by Government of Maharashtra under Indira Awas Scheme. Accused No.2, Shivaji Natha More is brother-in-law and the accused No.3 Rahibai is mother- in-law of deceased Alka. 4 It was alleged by Alka that since the date of marriage, accused persons were not treating her well and always used to ask her to leave 3 matrimonial home and go to her parents place. However, Alka tolerated accused persons and was living in the matrimonial home. According to the prosecution case, on 14.1.2007, deceased Alka was at home at about 10.00 a.m.. Accused No.1 Sitaram and accused No.2 Shivaji, both returned home in drunken state. Both started abusing deceased Alka and demanded money for drinking liquor. Deceased Alka requested them not to abuse her and expressed her inability to pay money for the liquor. Accused No.2 gave call to his mother, Rahibai i.e. accused No.3 and all of them entered in the house of accused No.1. Accused No.2 and 3 caught hold deceased and accused No.1 lifted a plastic can containing kerosene and he poured kerosene on the person of Alka and ignited match stick and threw it on the person of deceased Alka. As a result of this, Alka got burn. She made hue and cry and accused Nos. 1 and 2 poured water on her person and thereby tried to extinguish the fire. Alka went to her mother’s house on foot at Khandala. She narrated entire incident to her mother and her mother took her to Sahakar Kamgar Hospital, Shrirampur for treatment. 5 Doctor Sharad Madhav Satpute, P.W.10, treated deceased Alka in the said hospital. He sent memo of information to police Officer Shrirampur police station. A.S.I. Gangadhar Vishnu Auti, visited the hospital and inquired from Dr. Satpute about the fitness of deceased to 4 make statement. Accordingly Dr. Satpute, examined deceased Alka and certified that Alka is in fit condition to make statement. Thereafter, P.W.2 A.S.I. Auti recorded statement of Alka in the hospital in presence of Medical Officer. Medical Officer made endorsement on the statement of Alka Sitaram More that she was conscious and well oriented to give statement. The said statement was recorded on 14.1.2007. On the basis of the said statement initially the offence was registered under Section 307 r.w. Section 34 of I.P.C. against three accused persons. 6 P.W.2 A.S.I Auti gave request letter to Taluka Executive Magistrate for recording dying declaration of Alka. In pursuance to the said request letter, P.W.9 Namdeo Sampat on 14.1.2007 visited Sahakar Kamgar Hospital for recording the dying declaration. Dr. Satpute examined deceased and endorsed that she is in a position to give statement. P.W.9 recorded the statement of Alka and said statement was read over to her and thereafter he took her thumb impression of right hand on the dying declaration. The said dying declaration was exhibited as Exh.54. The said dying declaration was recorded in question and answer form by P.W.9. Deceased Alka disclosed in her dying declaration that her husband demanded money from her for drinking liquor and on refusal, her husband poured kerosene on her person and set her on fire. At that time, her brother in 5 law i.e. original accused No.2 and mother-in-law accused No.3 were present and both have helped her husband in setting her on fire. 7 On 15.1.2007, Investigation Officer visited the spot of incident and drew spot panchnama at Exh.40. On the spot he found burnt Saree, petticoat, blouse, green plastic can (empty). He also noticed one currency note of Rs.100 and one currency note of Rs.5 in the half burnt Saree. All clothes were having smell of kerosene. All these articles were seized and affixed the label of inquest panchnama. 8 All accused were arrested. Investigating Officer seized shirt, pyjama of the accused No.1. Both clothes were having smell of kerosene. Investigating Officer also seized clothes from other accused persons. On 1.2.2007, P.S.I. Yashwant Nivrutti Honmane, received memo from Sahakar Kamgar Hospital regarding death of Alka More and therefore he converted the offence from Section 307 to Section 302 of I.P.C. He visited the hospital and prepared inquest panchnama vide Exh.43. He gave letter to the Medical Officer for conducting post mortem report and accordingly post mortem was conducted by the Medical Officer. Muddemal articles were sent to the Chemical Analyzer. The report of the same was received on 7.4.2007. Charge sheet was submitted to the learned J.M.F.C. Shrirampur and the case was committed to the court of Sessions for trial. 6 9 Learned Sessions Court framed charge under Section 302 r.w. 34 of I.P.C. Accused denied the charge and in order to prove their innocence, accused No.1 examined his sister Sumanbai and witness Mandabai. After recording evidence and after hearing respective counsel for the parties, learned Sessions Judge Shrirampur framed as many as four points of its determination and adjudication. On the basis of two written dying declarations, corroborated by two oral dying declarations and with all other evidence brought on record by the prosecution, including Chemical Analyzer’s report, evidence of Medical Officer as well as Investigating Officer, the Additonal Sessions Judge, Shrirampur came to the conclusion to convict the accused No.1 Sitaram i.e. present appellant. However, in case of accused Nos.2 and 3, the Additional Sessions Judge gave benefit of doubt to the said accused persons since there was variance in the version of Alka about the overt act attributed to accused Nos.2 and 3. As stated earlier, the present appeal was admitted. However, bail was refused to the appellant herein and as a result of it the appellant is undergoing the sentence in jail. 7 10 Learned counsel appearing for the appellant submitted that entire case of the prosecution rests upon two dying declarations recorded by P.W.2, A.S.I. Auti and P.W. 9 Circle Inspector Namdeo Baburao Satpute. According to the counsel for the appellant, there is inconsistency in two dying declarations. The said inconsistency is regarding the act attributed to the accused persons. The learned counsel would submit that since there is inconsistency in dying declarations, the Sessions court has acquitted accused Nos. 2 and 3 and this court has confirmed the said acquittal order and therefore, the present appellant also deserves to be granted benefit of doubt in view of the inconsistency in two dying declarations. It is further submitted that on first dying declaration recorded by A.S.I. Auti, the toe impression is obtained by him on the said dying declaration. Learned counsel would submit that it is the case of the prosecution as stated by A.S.I. in his evidence and also from the dying declaration as well as inquest panchnama that both the hands of deceased Alka were burnt and thus the toe impression was obtained on the first dying declaration Exh.37. However, on the second dying declaration which was recorded at Exh.54 by the Circle Inspector on 14.1.2007 at 11.15 p.m., thumb impression of the victim Alka was taken. Therefore, learned counsel for the appellant would submit that if the prosecution approaches the case in first hand with the understanding that both the hands of deceased Alka were burnt and therefore, toe impression was 8 obtained by A.S.I. Auti while recording first dying declaration at Exh.37 and on the second dying declaration thumb impression of Alka was taken. The second dying declaration recorded by Circle Inspector, creates full doubt and suspicion in the mind about its truthfulness and ultimately both the dying declaration are not reliable. Therefore, learned counsel would submit that when the prosecution itself is not clear about its case and thus the benefit of doubt deserves to be given to the present appellant. It is further submitted that Additional Sessions Judge ought to have taken into consideration the irregularity and illegality committed in the investigation by the Investigating Officer. It is further submitted that prosecution failed to examine independent witnesses from the spot. Though the statements of son of deceased was recorded the said witness is not examined before the Court. It is further submitted that the prosecution has miserably failed to establish the case beyond reasonable doubt and therefore, the appellant deserves to be acquitted from the charges levelled against him. It is further submitted that though independent witness declared hostile, their evidence cannot be ignored. It is further submitted that burn injuries sustained by the accused appellant have not been explained by the prosecution. There is no any eye witness to the incident. There is absence of motive and intention and since co-accused are acquitted, the present appeal deserves to be allowed by setting aside the impugned judgment and order of the Sessions Court, Shrirampur. 9 Learned counsel in support of his submissions, placed reliance on the reported judgment of the Hon'ble Apex Court in the case of Mehiboobsab Abbasabi Nadaf Vs. State of Karnataka, reported in AIR 2007 SC 2666 and submitted that if there is inconsistency in two dying declarations and if the some of the accused are already acquitted on that ground, rest of the accused are also liable to be acquitted. Learned counsel invited our attention to the order passed by this court acquitting original accused Nos. 2 and 3 and submitted that since two dying declarations were inconsistent, this Court has refused to grant leave to file appeal against original accused Nos. 2 and 3 and thus the present appellant deserves to get benefit of the said observations in that order passed by this Court on 8.4.2009. Learned counsel further placed reliance on the reported judgment of this Court in the case of Deorao s/o Sonbaji Bhalerao and Anr Vs. State of Maharashtra, reported in 2008 4 Mh.L.J. (Cri.) 474 to contend that, if there is sole piece of evidence in the form of dying declaration and there is no other evidence, the conviction on the basis of sole dying declaration will have to be reversed. Learned counsel further invited our attention to the reported judgment of the Supreme Court in the case of Gura Singh Vs. State of Rajasthan, reported in AIR 2001 SC 330 to contend that though the witnesses are declared hostile, their testimony need not be excluded entirely or rendered unworthy for consideration. Learned counsel further invited our attention to the 10 reported judgment of the Supreme court in the case of State of U.P. Vs. Madan Mohan and others, reported in AIR 1989 SC 1519 and contended that if the independent witness from the locality are not examined and if the prosecution has suppressed the genesis of the incident and if there is no explanation by prosecution regarding injury on the person of one of the accused and the prosecution version about occurrence is deferring from version in dying declaration, the accused is entitled for acquittal. On the basis of the aforesaid submissions learned counsel for the appellant submitted that the appeal deserves to be allowed. 11 On the other hand, learned A.P.P. appearing for the State submitted that the Additonal Sessions Judge Shrirampur after taking into consideration two written dying declarations as well as two oral dying declarations made before mother of the victim and rickshaw driver and after recording evidence of investigating Officer and Medical Officer and after having been satisfied that there is corroboration to the statements made by the victim in the dying declaration, convicted the present appellant (accused No.1) and therefore, there is no scope to entertain this appeal. Learned A.P.P. invited our attention to both the dying declarations Exh.37 and Exh.54 recorded by the ASI Auti and Circle Inspector respectively and submitted that the overt act/role attributed to the original accused No.1 is consistent in both the dying 11 declarations and the same has been corroborated by two oral dying declarations. Learned A.P.P. further invited our attention to the spot panchnama, seizure panchnama, seizure of clothes of accused No.1 and C.A. report. Learned A.P.P. submitted that when in all four dying declarations victim Alka has stated that accused No.1, her husband, Sitaram demanded money for purchase of liquor and on refusal he poured kerosene on the person of Alka and set her on fire. He further submitted that none of the judgments cited by the counsel for the appellant are applicable in the facts and circumstances of this case. He submitted that in the instant case not only there are dying declarations which are consistent in their material particulars and overt act attributed to the appellant, however, the clothes of the appellant are having kerosene smell as is evident from the C.A. Report. Learned A.P.P. invited our attention to the statement of accused recorded under Section 313 of Cr.P.C. and submitted that though adverse circumstances were put to the accused in the statement recorded under Section 313, the accused gave evasive answers. It is further submitted that question No.24 was asked in respect of seizure of clothes of accused and he has admitted that his clothes were seized. Learned A.P.P. further submitted that the appellant in his statement recorded under Section 313 of Cr.P.C., has stated that, at the time of incident he was not in the house and he came later on and tried to extinguish the fire, is falsified by the other evidence brought on 12 record by the prosecution. Learned A.P.P. in support of his contention placed reliance on the reported judgment of the Hon'ble Supreme Court in the case of Maniben Danabhai Tulshibai Maheria Vs State of Gujarat, reported in 2007(7) Scale 93. Therefore, learned A.P.P. would submit that the appeal is devoid of merits and the same may be dismissed. 12 With the assistance of learned counsel appearing for the appellant and learned A.P.P. for the respondent-State, we have carefully perused the record and proceeding. We have also perused both the dying declarations as well as evidence of witnesses and also spot panchnama, C.A. report and entire evidence brought on record by the prosecution. We find that there is no dispute that the offence in question took place on 14.1.2007 at about 10.00 a.m. in the residential house of accused No.1. It is an admitted position that deceased Alka was wife of accused No.1. It is also admitted position that the clothes were seized from accused immediately. It is also not in dispute that accused persons did not make attempt to take victim to the hospital. 13 The main peace of evidence is in the form of Exh.37 and Exh.54 i.e. two written dying declarations recorded by A.S.I. Auti and Circle Inspector. On careful perusal of Exh.37 it is clear that deceased made categorical statement that accused Nos. 2 and 3 alongwith accused 13 No.1 entered in the house and caught hold on her and thereafter accused No.1, her husband i.e. appellant herein poured kerosene on her person and set her on fire. In the first dying declaration, the role attributed to the accused Nos. 2 and 3 is only that they first caught hold of her and accused No.1 alone poured kerosene on her person and set her on fire. Another dying declaration was recorded by the Circle Inspector on 14.1.2007 in between 11.15 p.m. to 11.30 p.m. in questions and answers form. The said dying declaration is at Exh.54. In the said dying declaration, it is categorically mentioned that husband of the deceased demanded money for drinking liquor and on refusal, her husband poured kerosene on her person and set her on fire. The first dying declaration as well as second dying declaration has been proved by the prosecution beyond reasonable doubt by leading evidence before the Additional Sessions Judge, Shrirampur. On perusal of evidence of P.W.2 Gangadhar Vishnu Auti and evidence of P.W.10 Sharad Madhavrao Satpute, Medical Officer and also the evidence of P.W.9, it is abundantly clear that Medical Officer has certified on both the dying declarations that deceased Alka was in fit condition to give such dying declarations. Therefore, there is no substance in the contention of the counsel appearing for the appellant that victim Alka was not mentally and physically fit to give the said dying declarations. The contention of the counsel for the appellant that toe impression was taken at the time of recording the first dying 14 declaration and thumb impression was taken at the time of recording the second dying declaration and therefore, both the dying declarations are not trustworthy, is required to be rejected. The first dying declarations at Exh.37 was recorded by A.S.I. (P.W.2) and it was his understanding that both the hands of the victim are burnt and therefore, she may not be able to give thumb impression and he obtained toe impression on the first dying declaration. On perusal of first dying declaration Exh.37, it appears that toe impression on the said dying declaration is taken. There is nothing to suggest or indicate on record that Doctor who is expert in the subject said that, since both the hands of the victim are burnt she is not able to give thumb impression. In fact, it was understanding of the concerned A.S.I. who recorded the dying declaration that both the hands of the victim are burnt and therefore, she may not be able to give thumb impression and therefore, toe impression was obtained on the dying declaration. In the evidence of Doctor as well as Investigating officer, there is nothing to suggest that defence counsel made endeavour to ask as to why toe impression was obtained on the first dying declaration and thumb impression on the second dying declaration. In the evidence of Medical Officer also there is nothing to suggest that both the hands of the victim were in burnt condition and she was not able to give thumb impression. In fact, the endorsement of Doctor on both the dying declarations clearly show that the victim was in a fit 15 condition to give dying declarations. Therefore, contention which is raised for the first time before this court is without any basis or without making any attempt by asking the question in that regard either to the Investigating Officer or to the Medical Officer before the trial Court. Therefore, the said contention of the appellant deserves to be rejected. The trial Court has categorically discussed about both the dying declarations and the evidence of A.S.I. who recorded first dying declaration and Circle Officer, who recorded the second dying declaration and also evidence of Medical Officer and recorded the finding that both the dying declarations has been duly proved by the prosecution. 14 On careful perusal of both the written dying declarations, it is abundantly clear that the dying declarations are consistent so far as role attributed to the present appellant is concerned. It is true that there is some variance regarding the role attributed to accused Nos. 2 and 3, however, in both the dying declarations deceased Alka has stated that the husband asked money for drinking liquor and on refusal he poured kerosene on her person and set her on fire. Therefore, the role attributed to the present appellant, who is accused No.1, finds place in both the written dying declarations and also in two oral dying declarations made before the mother (P.W.7) and Rickshaw driver (P.W.6). Therefore, the trial Court has rightly held that both the written 16 dying declarations are consistent so far as the role attributed to present appellant is concerned. The trial Court has also rightly held that two written dying declarations are corroborated by two oral dying declarations made before the mother of the victim as well as Rickshaw puller P.W.6. While considering the case based upon the dying declarations the observations of the Hon’ble Supreme Court in the case of Khushal Rao Vs. State of Bombay, reported in AIR 1958 SC 22 can be usefully referred to in the present case. In para 16, the Supreme Court held thus;- “(i) 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 17 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 realibility 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 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.” More or less the same principle has been reiterated by the Hon’ble Supreme Court in the case of Thurukanni Pompiah and Anr. Vs. State of Mysore, reported in AIR 1965 SC 939. 15 Coming to the first judgment relied upon by the learned counsel for the appellant in the case of Smt. Kamla Vs. State of Punjab, reported in AIR 1993 SC 374, it appears that in the said case, four dying declarations were made by deceased revealing glaring inconsistency vis-a-vis naming the culprit. On perusal of the para 4 of the said judgment, it clearly reveals that four different versions were given in the said dying declaration. On careful perusal of para 8 of the said judgment, it is noticed that in the first dying declaration it was 18 stated that her mother-in-law sprinkled kerosene oil from