cria16.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.16 OF 2010 1) Keshav s/o Dada Sangale, Age-75 years, Occ:Agri., R/o-Patsara, Tq-Ashti, Dist-Beed, 2) Rajendra s/o Keshav Sangale, Age-34 years, Occ:Agri., R/o-Patsara, Tq-Ashti, Dist-Beed. ...APPELLANTS. VERSUS The State of Maharashtra, ...RESPONDENT. ... Shri.R.N. Dhorde Advocate holding for Shri. V.R. Dhorde Advocate for the Appellants. Shri.D.V. Tele, Additional Public Prosecutor for Respondent. ... WITH CRIMINAL APPEAL NO.181 OF 2010 The State of Maharashtra, Through Police Station Officer, Ambhora Police Station, Tq-Ashti, Dist-Beed. ...APPELLANT. cria16.10 2 VERSUS 1) Prayagbai w/o Keshav Sangale, Age-55 years, Occu:Agriculture & Household, R/o-Patsara, Tq-Ashti, Dist-Beed. 2) Sumanbai w/o Rajendra Sangale, Age-30 years, Occu:Agriculture & Household, R/o- As above. ...RESPONDENTS. ... Shri.D.V. Tele, Additional Public Prosecutor for Appellant. Shri.R.N. Dhorde Advocate holding for Shri. V.R. Dhorde Advocate for the Respondents. ... CORAM: NARESH H. PATIL AND T.V. NALAWADE, JJ. DATE : 21ST APRIL, 2011 JUDGMENT [PER NARESH H. PATIL, J.] : 1. In a Sessions Case No.138 of 2008, the Additional Sessions Judge-II, Beed, by Judgment and order dated 1st January, 2010, convicted and sentenced the Appellants herein for an offence punishable under Section 302 read with Section 34 cria16.10 3 of the Indian Penal Code. The other original four accused were acquitted of all the charges by the trial Court. The State has preferred Appeal No.181 of 2010 against the order of acquittal. These two Appeals are disposed of by common Judgment and order. 2. Facts in brief are, that deceased Dropadabai, wife of Rajendra Sangale, was married before five years of the incident with Appellant No.2 Rajendra Sangale. Rajendra Sangale was already married to Suman alias Pankhabai. As Suman, first wife of Rajendra, was not blessed with a child, he married for the second time with deceased Dropadabai. But after marriage, the first wife, Suman delivered two children, first was girl child, and another was a son. The Appellants along with deceased Dropadabai, Suman, Mother in law, sister in law, brother in law, used to reside jointly. cria16.10 4 3. The prosecution case gets unfolded through two dying declarations. . It is alleged that on 4th September, 2008 after working in the field, the deceased, her mother in law Prayagbai, reached their house in the evening at 5.30 p.m. Suman had prepared food. The family members were to have food at about 7.30 p.m. At that time, Suman started misbehaving with deceased Dropadabai and assaulted her. Husband of deceased Dropadabai and other family members too supported Suman. Her hands and legs were tied and she was not allowed to go outside. The prosecution further alleges that while in the night deceased Dropadabai was sleeping without food, her husband Rajendra, Appellant No.2, told her that she should leave his house. Thereafter deceased Dropadabai slept near Suman in the night. During the night time at about 1.30 a.m., it is alleged that Rajendra, husband of deceased, his first wife Suman, brother in law Vithal, mother in cria16.10 5 law Prayagbai and father in law Keshav, poured kerosene from a plastic can on the person of deceased and set her on fire. It is alleged that after deceased suffered burn, she got up. There was no electricity at that time. She was taken to the hospital by Ramdas Garje and neighbour Prayagabai and she was admitted in Civil Hospital, Ahmednagar. It is further alleged that deceased Dropadabai, in a dying declaration stated that Rajendra and Suman poured kerosene on her person and father in law ignited match stick and set her ablaze. Her husband was holding kerosene pot. At that time deceased was standing and as she started shouting, some strangers entered in the house and somebody threw quilt on her person besides water and tried to extinguish fire. Neighbourer arranged Jeep and brought her in the hospital. 4. PW-3 Gorakshanath Ugarkar, Special Judicial Magistrate recorded first dying declaration, which is at Exhibit 71. The second cria16.10 6 dying declaration was recorded by PW-9 Umakant More, P.S.I., which is at Exhibit 88. Offence was registered at Crime No.93 of 2008 under Section 307, 506 read with 34 of the Indian Penal Code with Ambhora Police Station, Dist-Beed on 8th September, 2008. On the same day Dropadabai died in the hospital. Prosecution witness No.4 Dr. Sonali Bangar conducted post mortem on the same day at about 9 p.m. The investigation officer, after recording statements of witnesses and collecting evidence, filed charge-sheet on 29th November, 2008 in the Court of J.M.F.C. Ashti for an offence punishable under Sections 302, 307, 506 read with 34 of the Indian Penal Code, against six persons. 5. The trial Court framed charge against six accused persons on 2nd February, 2009 (Exhibit 25). The accused pleaded not guilty to the charge. The prosecution examined ten witnesses. cria16.10 7 6. In the first dying declaration recorded by Special Judicial Magistrate, at 12.40 p.m. on 5th September 2008, deceased Dropadabai stated that on 5th September, 2008, in the early morning i.e. 1.30 a.m. while she was sleeping, Suman, her husband and mother in law poured kerosene on her person and father in law ignited her with a match stick. Her husband was holding kerosene pot. She was set ablaze while she was in standing position. She stated that some outsiders rushed in the house while she was shouting due to burn injuries. They tried to put quilt on her person and extinguish fire by throwing water. Neighbourers brought her to the hospital. She stated that Suman used to quarrel with her and even her husband was supporting Suman. Her mother in law told her to make a false statement and not to file any complaint against them. She stated that she was burnt from her feet upto her head. 7. The second dying declaration was recorded cria16.10 8 by PW-9 - P.S.I. More, at about 5.30 p.m. on the same day. In the second dying declaration, the deceased Dropadabai stated that they were to have food at about 7.30 p.m. on 4th September, 2008. At that time Suman, first wife of her husband, started quarreling with her and slapped her. Other members of the family supported Suman, including her husband. Her hands and legs were tied and she was not allowed to go outside. Her husband stated that if she goes out, she will be killed. She further stated that in the night, she was sleeping near Suman and while she was sleeping, at about 1.30 a.m. her husband, Suman, brother in law Vithal, mother in law Prayagbai and father in law Keshav, poured kerosene on her person and set her ablaze. After she received burn injuries, she got up. At that time there was no electricity. She was brought to the hospital by one Ramdas Garje, along-with neighbour Prayagabai. She stated that as first wife of her husband was blessed with two children and she was not blessed with any child, cria16.10 9 the family members were troubling her and trying to kill her. She stated that she was completely burnt and was having lot of pains but she was conscious. 8. The prosecution witness No.3 is Gorakshanath Ugarkar, Special Judicial Magistrate, who recorded first dying declaration. He deposed before the Court that since 2004 he was working as Special Judicial Magistrate for Ahmednagar District. On 5th September 2008, he received written call to record dying declaration. It was received from Topkhana Police Station, Ahmednagar. He went to Civil Hospital at about 12.00 noon. Constable Syed was present with Dr. Thube. They all proceeded to burn ward. Constable Syed thereafter asked relatives of the deceased to leave the hall. Constable left the hall along with relatives of the deceased. The doctor enquired with patient, examined her and put his endorsement that she was mentally and physically fit to make a cria16.10 10 statement, at about 12.15 p.m. Patient was conscious and oriented according to the doctor. The witness had brief talk with Dropadabai. He disclosed his identity and asked some questions in accordance with the form available with him. The witness deposed that Dropadabai told him that in the night when she had slept, she woke up and found that her husband, mother in law, first wife of her husband, were pouring kerosene on her person. There was scuffle. They caught hold of her. Her father in law was there, he threw match stick on her person and ignited her. She started shouting. Thereafter outsiders rushed in the house. Her saree and blouse caught fire. The witness did not recollect as to whether Dropadabai referred to kerosene pot, neither he could recollect rest of the statement given by her. Her thumb impression was obtained on the statement. She had burn injuries on the palm but the thumb was clear. The witness put his signature by attesting thumb impression of the deceased. The cria16.10 11 doctor thereafter recorded that patient was conscious. He finished recording of dying declaration at 12.35 noon. During his cross examination, he deposed that when he went near patient, he saw fifteen to twenty women sitting near the patient. Dropadabai was repeatedly demanding water. She was shouting due to pains. While recording her statement, the witness noticed that deceased was shouting. The witness admitted that he has not recorded the said physical condition of the patient narrated by him, in the statement prepared by him. He admits that he had not got it verified whether sedatives were given to the patient. 9. PW-4 is Doctor Sonali Bangar, who conducted post mortem of deceased Dropadabai. In her examination-in-chief, she deposed that deceased Dropadabai had suffered 100% burnt. There were no clothes on her person. Her entire hair from head were burn. She conducted external cria16.10 12 examination. In her opinion, deceased died due to septicaemic shock due to 100% burns superficial to deep. In the opinion of the Doctor, the patient must have taken liquid food one hour before her death. The witness opined that she did not find kerosene smell to the skin of deceased. During her cross-examination, she deposed that category of 100% superficial to deep burn is number three. According to the Doctor, the patient may go into shock if the patient was having burn injuries to vital organs. 10. PW-5 Doctor Sanjay Dube, was medical officer in Civil Hospital, Ahmednagar. On 5th September, 2008, he was on duty. On that day Special Judicial Magistrate came in casualty section and stated that he wanted to record dying declaration of Dropadabai who was taking treatment in the burn ward. The witness has examined the patient to know whether she was conscious and fit to give a statement. He recorded his opinion and cria16.10 13 signed below the endorsement Exhibit 71. On the same day, at 5.00 p.m. the police officer from Ambhora police station contacted him. He had given a letter to record dying declaration. The witness accompanied P.S.I. More to visit the patient at about 5.00 p.m. . During his cross-examination, the witness stated that Dr. Pathak was in-charge of the burn ward. Fifteen to Twenty relatives of the patient were present near her. Considering the condition of the patient, it was the opinion of Doctor that saline and oxygen must be provided immediately to avoid the patient going into shock. For reducing the pain, sedatives are given but in this case, according to the Doctor, it was not given. This opinion was given by the Doctor according to the case papers of the patient. 11. PW-6 Noor Mahemood Syed, was duty constable in Civil Hospital, Ahmednagar. He cria16.10 14 received memo from Dr. Bade and thereafter contacted Ambhora police station on telephone and intimated them about the case. The witness phoned the Special Judicial Magistrate and wrote a letter to him, which is at Exhibit 78. The witness conducted inquest panchnama, Exhibit 65. In his cross-examination, he deposed that Special Judicial Magistrate came at 11.00 a.m. and he met Special Judicial Magistrate after recording the statement. 12. PW-7 is Namdeo Garje, who is father of deceased Dropadabai. He stated that there used to be quarrel in the family of Dropadabai as Sumanbai delivered a child and deceased could not, so the first wife of Rajendra and mother in law of deceased, were quarreling with the deceased. He was not aware about the other family disputes. The witness stated that he saw his daughter in totally burnt condition. Nobody was near her when he visited his daughter. Her in-laws were not there. cria16.10 15 She did not talk with him in the ward, according to the witness. The witness was cross examined by the A.P.P. on behalf of the State as he turned hostile. 13. PW-8 is Ambadas Garge, who was also hostile to the prosecution. PW-9 is Umakant More, who was P.S.I. He also recorded dying declaration of the deceased. The witness deposed before the Court that he did not ask the deceased whether she had given any other statement to somebody earlier, neither Dropadabai stated that she had made a statement earlier. The witness admitted that opinion of Dr. Dube was not recorded on the paper which he used for recording statement of Dropadabai, as Dr. Dube recorded his opinion on the letter issued by him. The witness stated that relatives of deceased Dropadabai were not present. In respect of physical condition, he stated that Dropadabai was repeatedly asking water. Saline was administered to her when he reached Dropadabai. cria16.10 16 Doctor was present when he recorded statement. 14. PW-10 is Angad Sukde, P.I. of Beed City Police Station. He was on duty in Ambhora Police Station. He registered crime on the basis of statement of victim. He carried the investigation. He deputed P.S.I. More to record statement of victim in Civil Hospital, Ahmednagar. He conducted spot panchnama. He deposed before the Court that he found burnt clothes having kerosene smell. The clothes were collected, and a gunny bag was collected by him. Sample of soil was collected which was having kerosene smell. Spot panchnama Exhibit 83 was conducted. He seized kerosene can, which was discovered at the instance of Appellant No.2 Rajendra. In his cross-examination, the witness stated that he was not aware as to whether telephonic message of Constable Sayed was recorded in station diary. 15. Learned counsel Shri. Ramesh Dhorde, cria16.10 17 appearing for the Appellants and the acquitted original accused persons, submitted that the dying declarations are suspicious in nature. Considering the physical condition of Dropadabai and considering 100% burn injuries suffered by her, it could be safely stated that she was not in a position to give statements twice. Three material witnesses namely- Ramdas Garje, neighbourer Prayagabai and relative Dnyandeo, were not examined by the prosecution. Even if it is presumed that the deceased had made statements, then the same could not be relied upon in view of the facts that fifteen to twenty relatives were surrounding her before recording dying declarations. The dying declarations of the deceased, were inconsistent and there was material variance inter-se between two dying declarations, according to learned counsel. The statements were tutored, therefore they are not truthful and reliable. The counsel further submitted that out of six, four accused persons were acquitted by the cria16.10 18 trial Court considering the evidence, therefore, by applying rule of parity, the Appellants too deserve to be acquitted. 16. Shri. Tele, learned A.P.P. submitted that Appellant No.2 being husband of the deceased, did not help the deceased even at the critical moment. His conduct was objectionable and suspicious. No family members gave any information to the police after the incident. Deceased was brought to the hospital by the neighbourers, which itself shows callousness on the part of the Appellants. The learned A.P.P. further submitted that dying declarations are truthful and there is no material variance between two dying declarations. Dying declarations inspire confidence in prosecution case. There is a motive behind the crime and considering the prosecution case, the Appeal filed by the convicted Appellants be dismissed by reversing the order of acquittal against four original accused persons, as the trial Court cria16.10 19 committed serious error in acquitting the accused persons. 17. We have perused the original record and considered the submissions advanced by the learned counsel appearing for the parties. The law in respect of appreciation of evidence relating to dying declaration is well settled by now. Order of conviction could sustain based on dying declaration without soliciting corroboration to it, if it inspires confidence. The dying declaration must be truthful and voluntary. The maker or dying person must be in a fit state of mind and body to make a statement. The maker should be conscious of the statement which is made. In cases where multiple dying declarations are there, it is required to be seen whether inter-se there is material variance. Insignificant variance shall not be criteria to reject a dying declaration from consideration while assessing evidentiary value of it. Prosecution case, cria16.10 20 considering entire facts of a particular case, must inspire confidence. 18. In the present case, we have minutely gone through the dying declarations, the evidence of the witnesses who recorded the two dying declarations. We are convinced that two dying declarations given by deceased Dropadabai, one to the Special Judicial Magistrate - PW-3 Shri. Ugarkar and another to PW-9 P.S.I. More, are inconsistent and at variance materially. In first dying declaration recorded between 12.00 to 12.40 p.m. on the day of incident i.e. 5th September 2008, the deceased Dropadabai stated that while she was sleeping at about 1.30 a.m. near her husband, first wife of her husband - Suman, her husband and mother in law poured kerosene on her person and her father in law ignited her with a match stick. Her husband was holding kerosene can. She stated that as she started shouting, some strangers rushed in the house and tried to cria16.10 21 extinguish fire. She stated that she was completely burnt. In the second dying declaration recorded in the evening between 5.00 to 5.30 p.m., she stated that in the night when she was sleeping near Suman, who is first wife of her husband, at about 1.30 a.m., her husband, Suman, brother in law Vithal, mother in law Prayagbai, father in law Keshav, poured kerosene on her person from a plastic can and all of them set her on fire. As she suffered burn injuries, she got up. At that time there was no electricity. She was taken to hospital by Ramdas Garje and neighbourer Prayagabai and one relative namely Dnyandeo Sangale. Initially she was taken to Ashti and from there, to Civil Hospital, Ahmednagar. She complained that as she did not deliver a child, first wife of her husband who was blessed with two children, and mother in law, were troubling her and they decided to finish her off and therefore they poured kerosene on her person and set her on fire. She stated in the second dying declaration cria16.10 22 that she was completely burnt and was having lot of pains. 19. In both these statements, we find that the manner in which the allegations are made against the accused persons and the role attributed to them, is at variance. In the first dying declaration, she has involved Suman, her husband, mother in law, father in law, whereas in the second dying declaration, she has involved two more persons i.e. brother in law Vithal and mother of Suman, namely, Aprugabai. In the first dying declaration, the deceased stated that she was sleeping near her husband. In second dying declaration, she stated that she was sleeping near Suman, first wife of her husband. In the second dying declaration Dropadabai stated that through out the day she was working with her mother in law and sister in law and they reached the house in the evening. There was quarrel at 7.30 p.m. Her husband threatened her to leave the house. At that cria16.10 23 time, she stated that mother of Suman was also present. Inspite of the same, she claims to have slept with Suman. She stated that she was sleeping near Suman and there was no electricity at that time. This narration is totally absent in the first dying declaration made by the deceased Dropadabai. 20. Learned counsel for the Appellants submitted that much is to be seen in the P.S.I. More and Special Judicial Magistrate Ugarkar contacting Dr. Thube who was looking after casualty section, whereas the deceased was admitted in the burn ward. There was no reason for these prosecution witnesses to go to Dr. Thube, to take him to burn ward, get examined Dropadabai from him and thereafter record the statement. The counsel submitted that in all certainties, Dropadabai was not in a fit state of mind and body to make a statement, but prosecution witnesses found Dr. Thube to be a convenient doctor for cria16.10 24 getting endorsement on the piece of papers on which dying declarations/ statements of Dropadabai were said to have been recorded. The counsel submitted that the statement that constable Syed and Special Judicial Magistrate proceeded to the deceased along with Dr. Thube, is also not a reliable version. 21. Another noticeable feature in the case is that father of the deceased - Namdeo Garge, PW-7, has not supported the prosecution on the allegations of accused committing offence. Though the father of deceased deposed that there used to be quarrel in the house of the accused relating to the deceased, but beyond that even the father has not supported the prosecution case. He was hostile to the prosecution. Another witness, PW-8 Ambadas Garge, was also declared hostile by the prosecution. 22. Considering this evidence on record, the cria16.10 25 other circumstances of drawing inquest panchnama, spot panchnama, C.A. Report, could not materially support the prosecution case in involving the accused persons. In the chemical analyser's report, kerosene residues were found in the soil collected, partially burn polythene bag, partially burn quilt and whitish dhoti, but there was no kerosene detected on match box and coloured full pant. 23. Learned counsel for the Appellants placed reliance on the Judgment of the Apex Court in the case of State of Punjab vs. Gian Kaur and another, A.I.R. 1998 S.C., 2809. Para-5 of the Judgment reads as under: "5. The High Court disbelieved the dying declaration on the ground that even though according to the medical evidence Rita had 100% burns, the thumb mark of Rita appearing cria16.10 26 on the dying declaration had clear ridges and curves. The High Court found evidence of Dr. Ajay Sahni- P.W.1 not reliable as he failed to satisfactorily explain how such a thumb mark could appear on the dying declaration when Rita had 100% burns over her body. The High Court relied upon the deposition of Doctor Aneja, who had performed the post-mortem and who has categorically stated that there were 100% burns over her body and both the thumbs of Rita were burnt. In view of such inconsistent evidence, the High Court was right in giving benefit of doubt to the respondents. It cannot be said in this case that the High Court has taken an unreasonable view." 24. Learned counsel for the Appellants also placed reliance on the Judgment in the case of Burkhbee vs. State of Maharashtra, 2006 Cri. L.J., cria16.10 27 3128. Para-9 of the Judgment reads as under: "9. It would be noted that proof of recording of dying declaration is one thing and evidentiary value and truthfulness of the dying declaration is another matter. Before a person could be convicted on the basis of dying declaration/(s), written or oral, it is not sufficient only to see that the dying declaration/(s) has/have been correctly recorded and they are recorded as per the say of the declarant. Due compliance with the procedure would lead one to conclude that the dying declaration is the true version of the declarant. This, however, is not end of the matter. The dying declaration, before it can form basis for conviction, it must be