Crim.Appeal 155/09 - 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.155/2009 Dnyaneshwar s/o Chintaman Patil, age 43 yrs., occu.Rickshaw Driver, r/o Hirapur Road, Padmalaya Nagar, Chalisgaon Tq.Chalisgaon Dist.Jalgaon. ...Appellant.. Versus The State of Maharashtra. ...Respondent... ..... Mrs.S.S. Jadhav, Advocate for appellant. Shri D.R. Kale, APP for respondent. ..... CORAM: P.V. HARDAS & A.V. POTDAR, JJ. DATE: 03.12.2010 ORAL JUDGMENT (Per P.V. Hardas, J.) : 1] The appellant, who stands convicted for an offence punishable u/s 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.3,000/-, in default of which to undergo further rigorous imprisonment for three months, by the Additional Sessions Judge, Jalgaon, by judgment dated 30.1.2009, in Sessions Case No.30/2008, by this appeal questions the correctness of his Crim.Appeal 155/09 - 2 - conviction and sentence. 2] It appears that initially when this appeal was heard for final hearing by the Division Bench of this Court, the Division Bench came to the conclusion that the dying declaration at Exhibit 40 had not been proved, though the defence had admitted the correctness of the said document. The prosecution had not called upon the defence to either admit or deny the genuineness of the aforesaid document. The Division Bench, therefore, remitted the matter back to the trial Court for examining the Medical Officer, who had put his endorsement on Exhibit 40 and the investigating officer as well as the officer, who had recorded the dying declaration of deceased Ranjana at Exhibit 40. After the trial Court recorded the additional evidence i.e. evidence of Court witnesses 1 to 4, the trial Court has forwarded the additional evidence to this Court. 3] Such of the facts as are necessary for decision of this appeal may briefly be stated thus: PW 2 Ramesh Fulpagare, an ASI attached to Dhule Police Station, was directed on 20.9.2007 by the Police Inspector, Dhule, to record the dying declaration of Ranjana wife of the appellant, who was admitted in the hospital with burns. The letter received by W 2 ASI Fulpagare is at Exhibit 21. He accordingly proceeded to the Civil Hospital at Dhule and the Nurse on duty pointed out injured Ranjana to PW 2 Fulpagare. According to him, the staff nurse made an inquiry Crim.Appeal 155/09 - 3 - from Ranjana and told him that Ranjana was conscious and was in a position to give her statement. He states that he recorded the statement of Ranjana in which Ranjana had stated to him that on 18.9.2007 at about 9 a.m. when she was cooking on the electric oven at her house, the appellant poured kerosene on her and set her ablaze. He accordingly obtained her thumb impression on the said statement at Exhibit 22. He accordingly handed over the said statement to Dhule City Police Station. Court witness No.4 Anil Shinde, an API, who was then working as PSI at Police Station, Chalisgaon, registered an offence vide Crime No. 227/2007 u/s 307 of the Indian Penal Code on the basis of the statement of Ranjana at Exhibit 22. He accordingly visited the scene of the offence and seized one plastic can and one match box from the scene under the scene of the offence – panchanama at Exhibit 24. He recorded the statements of other witnesses. Ranjana succumbed to her injuries on 29.9.2007 and accordingly an inquest panchanama had been drawn at Exhibit 15. He thereafter arrested the accused. It appears that PW 1 Virsing Gavit, an Executive Magistrate, was served with a memo on 20.9.2007 and was requested to record the dying declaration of Ranjana. He accordingly proceeded to the Civil Hospital and contacted the Medical Officer, who ascertained the condition of Ranjana and opined that Ranjana was in a fit condition to give her statement. Recording of the statement of Ranjana commenced at 2-30 p.m. and was completed at 2-50 p.m. The statement of Ranjana recorded by PW 1 Virsing Gavit is at Exhibit 14. Post mortem on the dead body of deceased Ranjana came to be performed Crim.Appeal 155/09 - 4 - by one Dr.Sandeep Patil, who was attached to the Medical College and Hospital, Dhule. The aforesaid post mortem report, which is at Exhibit 18, has been admitted by the accused. As per the post mortem report, Ranjana had sustained about 50% burn injuries and the cause of death is septicemia following thermal burns. It also appears that the provisional cause of death certificate had been issued by the Medical Officer, which is at Exhibit 17, which also gives the cause of death as septicemia following thermal burn injuries. Further to the completion of investigation, a charge sheet against the appellant came to be filed. On committal of the case to the Court of Sessions, the trial Court, vide Exhibit 8, framed charge against the appellant for an offence punishable u/s 302 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. The trial Court accepted the evidence of the prosecution, who had examined five witnesses and convicted and sentenced the appellant as afore-stated. 4] As pointed out by us above, this Court, while hearing the appeal, had remanded the appeal for additional evidence and after additional evidence, this appeal has been placed before us for hearing. The trial Court recorded the evidence of four Court witnesses, to whose evidence, we shall shortly advert to. 5] PW 1 Virsing Gavit, as pointed out by us above, only states about recording of the dying declaration of Ranjana at Exhibit 14 between 2-30 p.m. to 2-50 p.m. on 20.9.2007. PW 1 Virsing has not proved the contents of the dying declaration. Crim.Appeal 155/09 - 5 - In the absence of the same, the dying declaration can not be read in evidence. A reference may usefully be made to the judgments of the Division Bench of this Court as under: [1] Jivan Tulsiram Dhavali & another V/s State of Maharashtra 2008 ALL MR (Cri) 2018 [2] Laxmibai w/o Maruti Satpute & others V/s State of Maharashtra 2010 ALL MR (Cri) 182 6] PW 2 PSI Ramesh Fulpagare, who had recorded the statement of Ranjana at Exhibit 22, states that he had enquired from the staff nurse, who had talked to Ranjana and had opined that Ranjana was in a fit condition to give her statement. He then proves the contents and states that he recorded the statement of Ranjana at Exhibit 22. In cross examination, he has admitted that he could not state the name of the doctor, who was in-charge of the Burn Ward. He has also admitted that neither the Medical Officer nor the Tahsildar were present there. He has admitted that his statement was completed within 15 minutes. He has admitted that thumb impression of Ranjana is not attested by the Nurse or by any other person. The document at exhibit 21, which is a direction to PW 2 Ramesh Fulpagare, for recording the dying declaration of Ranjana, states that an entry in the station diary to that effect was made at 1-45 p.m. At Exhibit 21, it is stated that Ranjana had sustained the burns on account of bursting or flaring of the stove. It further appears that Ranjana had been admitted in the hospital at 1-30 p.m. Crim.Appeal 155/09 - 6 - 7] Prosecution has examined PW 4 Dr.Yogesh Thakare, who was present at the time of recording of the statement at Exhibit 14 by PW 1 Virsing Gavit. PW 4 Dr.Thakare states that at about 2-30 p.m., the Executive Magistrate had come to the hospital for recording the statement of Ranjana. He states that he examined Ranjana and found that Ranjana was conscious and alert and was in a position to give her statement. He states that he had accordingly put the endorsement on Exhibit 14. He has proved his endorsement on Exhibit 14 at Exhibit 29. He then states that the Executive Magistrate recorded the dying declaration of Ranjana at Exhibit 14 in his presence. He states that thereafter he examined Ranjana and found that since she was conscious and well oriented, he wrote a second endorsement to that effect on Exhibit 14. The second endorsement of PW 4 Dr.Yogesh Thakare is at Exhibit 30. In cross examination, he has admitted that Ranjana had been admitted in the hospital by her husband at 1-15 p.m. He has admitted that Ranjana had been brought to his hospital after 24 hours of sustaining the burns. It appears that Ranjana had been initially admitted in Babji Hospital at Chalisgaon and thereafter was referred to the Civil Hospital at Dhule. He has admitted that when Ranjana was brought in the hospital, her relatives were present with her. 8] Prosecution has examined PW 5 Lotan Damu Patil, brother of deceased Ranjana. He states that Ranjana was married to the appellant and has two sons from him. He further states that the appellant was addicted to liquor and on that Crim.Appeal 155/09 - 7 - count, there used to be frequent quarrels between the appellant and the deceased Ranjana. He has also stated that the appellant was unemployed and used to obtain money from deceased Ranjana and his son, and if Ranjana objected or said anything, the appellant used to beat her. He states that on 18.9.2007, he was in his field and learnt that his sister Ranjana had sustained burns and was admitted in the hospital. He states that on 19.9.2007, he went to the hospital at Chalisgaon. He further states that the appellant had demanded money for admitting Ranjana in the Government hospital at Dhule. Ranjana was thereafter shifted to Dhule Hospital on 20.9.2007. He states that he had talked to Ranjana and had enquired from her and Ranjana had told him that on 18.9.2007, there was a quarrel between her and the appellant, and the appellant had demanded money for drinking liquor. The appellant accepted Rs.350/- from his son Dinesh. Ranjana had berated the appellant that he was unemployed and does not support the household and on that count, the appellant had assaulted Ranjana and had stated that he would finish the matter permanently. Ranjana further told him that while she was cooking on the stove at 9-00 p.m., the appellant poured kerosene and set her ablaze. Her younger son Kapil and the appellant had extinguished the flames. In cross examination, he has admitted that Ranjana was married to the appellant about 20 to 25 years prior to the incident. He was put a suggestion that during the period of 20 to 25 years, Ranjana had not filed any case against the appellant, which was denied by him. He has admitted that younger son of the appellant namely Dinesh plies an auto rickshaw. He has denied the suggestion that he had received a Crim.Appeal 155/09 - 8 - message on telephone that saree of Ranjana had caught fire. He has denied to have stated portion marked ‘A’ in his statement, which is to the effect that daughter of PW 5 Lotan by name Sunita had come to the agricultural field and had informed him that son of the appellant by name Kapil had informed on telephone that saree of Ranjana had caught fire and that she had sustained burns. Omission has been duly proved that he had not stated in his statement that the appellant was addicted to liquor. Omission has been duly proved that he had not stated that the appellant had demanded money in the hospital. Similarly, omission has been duly proved that he had not stated that on 18.9.2007, Ranjana had informed him that the appellant had demanded money for consuming liquor. Statement of this witness was recorded on 22.9.2007, whereas Ranjana had sustained burns on 18.9.2007. He has denied to have stated portion marked ‘B’ in his statement that as the face and the lips of Ranjana had been burnt, she could not talk properly. He has admitted that he had reached Babji hospital at Chalisgaon on 19.9.2007 at about 2-30 p.m. 9] After the appeal was remitted to the trial Court for recording the evidence of additional witnesses, the trial Court has examined four Court witnesses. Court witness no.1 Dilipsing Rajput, who had recorded the dying declaration of Ranjana at Exhibit 60 states that he had received a memo from Babji Hospital at Chalisgaon informing him about the admission of Ranjana with burns in the hospital. He states that thereafter he had gone to Babji Hospital at Chalisgaon Crim.Appeal 155/09 - 9 - where he contacted the Medical Officer in his cabin. The Medical Officer told him that Ranjana was conscious and that he may record her statement. He states that the Medical Officer had not examined Ranjana in his presence. He states that thereafter he went to the cot of Ranjana and satisfied himself that Ranjana was in a fit condition to give her statement and accordingly recorded her statement. Ranjana in the said statement before him had stated that on 18.9.2007, she was kneading the flour for preparing Chapatis and when she lighted the stove, the stove flared as a result of which her saree caught fire. She had shouted and on hearing her shouts, her husband and her sons Dinesh and Kapil had rushed to the room and had extinguished the flames by pouring water on her. She further stated that she had been brought to Babji Hospital by her husband and sons. Ranjana in no uncertain terms has stated that due to the bursting of the stove, she had sustained burn injuries to her hands and stomach. He then states that he asked her if any one had set her on fire and Ranjana looked at her husband, who was standing nearby and then said that no one had set her on fire. He states that he thought that Ranjana was giving false statement under pressure of her husband and had taken precaution of asking the husband to go out of the ward, but while recording the statement, he had entered the ward. He states that he read over the statement of Ranjana to her, who admitted the contents. Since Ranjana could not sign, he obtained her left hand thumb impression and he countersigned thereafter. He has further stated that during recording of the statement of Ranjana, the Medical Officer was not present and thereafter he had gone to the cabin of the Crim.Appeal 155/09 - 10 - Medical Officer with the statement and had obtained the endorsement and the signature of the Medical Officer. In cross examination on behalf of the appellant, Court witness No.1 Dilipsing, a Head Constable, who had recorded the statement of Ranjana at Exhibit 40 has admitted that he has recorded several dying declarations prior to recording the statement of Ranjana. He has admitted that he knows that a Medical Officer should be present at the time of recording of the dying declaration. He states that he had asked the Medical Officer to remain present, but the Medical Officer was not present. He has admitted that he was satisfied that the patient was conscious and in a fit state of mind to give her statement and, therefore, he recorded her statement. He has admitted that there were 5 to 6 beds in the General Ward and there was only one door to the ward. He has stated that he knows that while recording the declaration of a victim, the relatives of the victim should be removed from the Ward. He has stated that he did not consider it necessary to ask the accused to leave the Ward. He has admitted that the dying declaration at Exhibit 40 is in the words of Ranjana. He has admitted that his statement during investigation was not recorded. He has admitted that he was stating for the first time that the patient was under pressure of the accused. He has admitted that he had not submitted his report to the station diary in-charge to the effect that Ranjana had given her statement under pressure of the accused. He has then admitted as true that Ranjana had voluntarily given her statement at Exhibit 40. Crim.Appeal 155/09 - 11 - 10] Court witness No.3 Dr.Manisha Patil states that she is Bachelor in Ayurvedic Medicine and Surgery and was working as Medical Officer in Babji Hospital at Chalisgaon since 2003 to June, 2009. She states that on 18.9.2007, while she was on duty, Ranjana was admitted in the hospital. She then states that Ranjana had sustained approximately 49% superficial to deep burns. She states that she had examined Ranjana and had taken notes of the general examination in the bed head ticket. She states that she had sent the M.L.C. to the Police Inspector, City Police Station, Chalisgaon. Copy of the M.L.C. is at Exhibit 56 and the bed head ticket is at Exhibit 57. She states that the Police officers had come to the hospital for recording the statement of Ranjana and they had enquired with her whether she was in a fit mental condition to give her statement. She states that Ranjana had been examined by her previously and she had found Ranjana in a fit mental condition and accordingly she had informed the Police officers that Ranjana was conscious and oriented. She states that the Police started recording the statement of Ranjana in her presence. She states that she was present during recording of the statement of Ranjana. She states that after statement of Ranjana was recorded, she had put her endorsement that Ranjana was conscious while her statement was being recorded. In cross examination on behalf of the prosecution, she has admitted that it is nowhere mentioned that she was present throughout recording of the statement. In cross examination on behalf of the accused, she has admitted that before the statement of Ranjana was recorded by the Police, she had examined Ranjana and had put certain questions to Ranjana in order to Crim.Appeal 155/09 - 12 - assess her mental condition. She states that after completion of the statement, she had again verified the physical and mental condition of Ranjana. 11] Prosecution has examined Court witness No.4 PSI Anil Shinde, who has stated about registration of the offence and drawing of the scene of the offence – panchanama. He has admitted that he had filed the statement of Ranjana at Exhibit 40 along with the charge-sheet. In further cross examination on behalf of the appellant, he has admitted as true that Ranjana had stated that on account of flaring of the stove, her saree had caught fire and she had sustained burns. He has admitted that he did not consider it necessary to seize the stove, which was found on the sot. He has proved the omissions and contradictions in respect of the statement of PW 5 Lotan. 12] The dying declaration at Exhibit 40, which was recorded on 18.9.2007 in the morning, Ranjana states that while she was cooking her food on 18.9.2007, on account of sudden flaring of the stove, her saree caught fire and, therefore, she raised cries for help. It is further stated by Ranjana in the said statement that her husband and her children rushed there and poured water on her and extinguished flames. In the light of the examination of the Court witnesses, especially Court witness No.1 Dilipsing and Court witness no.3 Dr.Manisha Patil, the contents and the recording of the dying declaration had been proved. As pointed out by us above, the contents of Exhibit 14, a dying declaration recorded by PW 1 Virsing Crim.Appeal 155/09 - 13 - Gavit, have not been proved. We are, therefore, left with the two dying declarations viz. Exhibit 40, which is recorded first in point of time and subsequently Exhibit 22. According to us, Court witness no.1 Dilipsing is a rank lier. He has stated that the Medical Officer was not present during recording of the dying declaration. He has further stated that the Medical Officer had not examined Ranjana and that Ranjana was under pressure of her husband during recording of Exhibit 40. The admissions elicited in the cross examination completely belie the fact that Ranjana was under pressure. Court witness No.3 Dr.Manisha Patil has falsified the evidence of Court witness No.3 Dilipsing that she had neither examined Ranjana nor she was present. According to us, therefore, no reliance can be placed on the statements made by CW 1 Dilipsing about absence of Medical Officer and about Ranjana being under pressure. Exhibit 40 has been established to have been correctly recorded. Exhibit 22 is a dying declaration, which came to be recorded by PW 2 Ramesh Fulpagare on 20.9.2007 in the afternoon. No doubt, in the said dying declaration, Ranjana states that while she was cooking on an electric hot plate, the appellant had poured kerosene on her and had set her ablaze, yet in the face of the dying declaration at Exhibit 40, which has not been proved to be a dying declaration on account of either coercion or pressure of the appellant, no reliance can be placed on the dying declaration at Exhibit 22. 13] In cases resting on multiple dying declarations, all the dying declarations of Crim.Appeal 155/09 - 14 - the injured should be consistent. Consistency is normally expected in respect of the prelude to the incident, the incident itself and the overt act attributed to each of the accused. In the present case, the dying declarations at Exhibits 40 and 22 are diametrically opposite. The accused has been successful in establishing the genuineness of the dying declaration at Exhibit 40. In such circumstances, acceptance of any one dying declaration necessarily falsifies the other. In the present case, there is no evidence that the dying declaration at Exhibit 40, which was recorded first in point of time, was a statement of deceased Ranjana, which was outcome of any pressure or coercion on behalf the appellant. In such circumstances, therefore, we find that the dying declaration at Exhibit 40 can not be lightly brushed aside. As pointed out by us above, in the light of the fact that the two dying declarations are poles apart, the benefit of doubt has to be given to the appellant-accused. Curiously, during recording of the scene of the offence – panchanama, no electric hot plate was found in the house of the accused. The absence of an electric hot plate would completely falsify the recitals in the dying declaration at Exhibit 22. Prosecution has also not examined the two sons of the appellant, who were instrumental in extinguishing the flames sustained by Ranjana. Ranjana has admitted their presence in the house at the time of the incident. In such circumstances, therefore, according to us, the recitals in the dying declaration at Exhibit 22 do not appear to be a truthful version of the incident, but appears to us to be a colored version of the incident introduced by Ranjana at the behest of PW 5 Lotan. PW 5 Lotan was admittedly present in the Crim.Appeal 155/09 - 15 - hospital right from 19.9.2007 and in such circumstances, the possibility of Lotan tutoring Ranjana can not be ruled out. Ranjana had been married to the appellant for nearly 20 to 25 years and during that span, there does not appear to have been any complaints made by Ranjana, at least none have been deposed to by PW 5 Lotan. In such circumstances, therefore, according to us, this Court can safely place reliance on the dying declaration at Exhibit 40 to come to the conclusion that the prosecution has failed in proving that the accused had set fire to Ranjana. 14] According to us, therefore, the appellant is entitled to be acquitted and accordingly this criminal appeal is allowed. The conviction and sentence of the appellant is hereby quashed and set aside and he is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant, be refunded to him. Since