drp {1} Cri. Appeal No.589/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.589 OF 2009 Dhanraj Jairam Patil APPELLANT Age-25 years, Occ-Nil R/o Aadgaon, Tq-Erandol, Dist-Jalgaon VERSUS The State of Maharashtra RESPONDENT ....... Mr.Satej S.Jadhav h/s Smt.S.S.Jadhav, Advocate for appellant Mrs.R.K.Ladda, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 23rd February 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.) : 1. The appellant, by this appeal, has challenged his conviction for an offence punishable u/s 302 of the India Penal Code and sentence of imprisonment for life and to pay a fine of Rs. 5000/- with default stipulation of undergoing RI for further six drp {2} Cri. Appeal No.589/2009 months, awarded by Additional Sessions Judge, Jalgaon vide judgment and order dated 17.12.2008 passed in Sessions Case No. 203/2005. 2. The prosecution case, as unfolded during the trial, is as follows : a) Meerabai Dhanraj Patil (deceased) was admitted in Civil Hospital, Jalgaon on 12.08.2005 at about 4.00 p.m. as she had sustained burn injuries. Accordingly, PW-12 Dr.Swapnil Patil had intimated the Zilla Peth Police Station. Thereafter, PSO Zilla Peth Police Station, Jalgaon had sent a request letter (Exhibit-60) to Tahsildar requesting to make arrangement for recording dying declaration of the victim. Ramlal Bhika Bramhne PW-4, official working in Tahsil office, Jalgaon had reached at Civil Hospital and recorded dying declaration (Exhibit-61) of victim Meerabai between 5.10 and 5.20 p.m. At the same time, PSO Zilla Peth police station had also directed PSI Arjun Idhate (PW-6) to record the dying declaration. Accordingly, PW-6 Idhate had also recorded the dying declaration (Exhibit-66) between 5.22 and 5.50 p.m. after the victim was examined by the medical officer and certified about her condition to give the statement. Thereafter, API Chandu Gangude of Kasoda police station had registered an offence at Crime No. 19/2005 u/s 307 of the Indian Penal Code against the appellant. The investigation of the said offence was entrusted to API drp {3} Cri. Appeal No.589/2009 Gangurde (PW-16). Thereafter the appellant was put under arrest on 12.08.2006 itself vide arrest Panchanama Exhibit-116. The appellant was referred to Medical Officer, Primary Health Center, Kasoda as he had also sustained burn injuries on his hands. Accordingly, medical certificate (Exhibit-99) was issued to the appellant. b) During the further investigation, the investigating officer had visited the place of offence at Aadgaon and drew Spot Panchanama (Exhibit-49). From the scene of offence, partly burnt quilt, one plastic can containing kerosene without led, one match box, some burnt match sticks, one partly burnt peticot, one partly burnt nicker and partly burnt blouse was seized. Thereafter, statements of certain witnesses were recorded by the Investigating Officer. c) On 14.08.2005, PW-9 Mahananda Patil and Sarita Mantri, Members of Mahila Dakshta Samiti were requested to interview the victim. Accordingly, interview of the victim Meerabai was taken by those ladies in Civil Hospital, Jalgaon and video shooting of the said interview was taken by PW-10 Purushottom Sali, which is at Exhibit-92. d) On 17.08.2005, Meerabai succumbed to the burn injuries in the Civil Hospital, Jalgaon and hence the offence came to be converted u/s 302 of the Indian Penal Code. Thereafter, drp {4} Cri. Appeal No.589/2009 Inquest Panchanama (Exhibit-71) was drawn and the dead body was referred for Postmortem examination. e) Dr.Rahul Mahajan (PW-5) conducted the postmortem and noticed that Meerabai had sustained about 17% superficial to deep burn injuries on her chest and abdomen, 18% on back, 9% on right upper limb, 9% on left upper limb, 18% on right lower limb, 18% on left lower limb and 1% perineum. She had received total 90% burns. There was formation of pus and slough and the injuries were ante mortem. The Medical Officer has opined that the probable cause of death of Meerabai was due to shock due to 80% burns. Accordingly, PM report (Exhibit-63) was prepared. The Medical Officer has also opined that the injuries found on the person of the deceased were sufficient to cause death in ordinary course. f) On 21.09.2005, statements of father and mother of the deceased were recorded, who have disclosed names of 8 persons and therefore, the said 8 persons were arrested in connection with the said offence. On 22.09.2005 the seized property was forwarded to the Chemical Analyzer for examination through police constable PW-13. g) On 25.09.2005, statements of Manisha Rajendra Patil and Rajendra Dhudku Patil (PW-8) sister and brother in law of the deceased were recorded. After receipt of the CA reports and on drp {5} Cri. Appeal No.589/2009 completion of the investigation, charge sheet was filed against the accused before the JMFC, Eraondol. h) After committal of the trial, the trial court framed charge (Exhibit-28) against the accused persons for an offence punishable u/s 302 r/w 114 of the Indian Penal Code. The appellant was also separately charged for an offence punishable u/s 302 of the Indian Penal Code. The accused pleaded not guilty to the charge and claimed to be tried. The prosecution, to prove its case, had examined in all 16 witnesses. The defence of the accused was of total denial. The appellant examined one Dharmaraj Mahajan (DW-1) in his defence, who has deposed that at the relevant time the appellant was working in his field. The trial court, on appreciation of the evidence on record, convicted the appellant for an offence punishable u/s 302 of the Indian Penal Code, however acquitted other accused of the charge. Admittedly, acquittal of the other accused has not been challenged and hence has attained finality. 3. For better appreciation of the submissions advanced by learned counsel for the appellant and that of learned APP, it may be useful to advert to the evidence of material witnesses examined during the trial. 4. The appellant has not disputed that the death of Meerabai is caused due to burn injuries and the same was drp {6} Cri. Appeal No.589/2009 unnatural. However, the appellant has raised a question in the present appeal that as to whether the prosecution has established that the death of Meerabai is a homicidal one and the appellant is the author of the injuries found on the person of the deceased, as the conviction of the appellant is based on two dying declarations (Exhibit-61 and Exhibit-66). The appellant has not disputed the place of incident. 5. Prosecution witness No.4, Ramlal Bhika Brahmne has deposed that at the relevant time he was working in Tahsil office at Jalgaon and powers, to record dying declaration, were conferred on him. He had visited the Civil Hospital Jalgaon on 12.08.2005 and in presence of the Medical Officer, who had examined the victim and certified that she was fit to give statement, had recorded the statement of victim Meerabai. He has stated that on his query Meerabai had disclosed him about her residential address and marital status. Meerabai had further disclosed to him that her brother in law had admitted her in the civil hospital. She had also disclosed that on the day of the incident she did not allow the appellant to have sexual relations and hence the appellant got enraged and poured kerosene on her person and had set her on fire. He has stated that the victim did feel restlessness when her statement was being recorded. The said statement was recorded between 5.10 and 5.20 p.m. He had obtained endorsement of the Medical Officer on the said statement (Exhibit-61). He has further stated that he had got photocopies of the said statement and had drp {7} Cri. Appeal No.589/2009 sealed the original. He denied that he was not empowered to record the dying declaration. He has stated that he had put the questions serially as per the serial in the printed proforma and he had not put any other question to the victim. About the condition of the victim, he has stated that the victim was under medical treatment when her statement (Exhibit-61) was recorded. He has admitted that he had not asked Meerabai about medicine given to her. He has further admitted that neither the victim had disclosed as to when, where and at what time she had sustained the burn injuries nor did he feel it necessary to enquire about the same. He has further stated that the concerned Medical Officer had put his endorsement on the said statement (Exhibit-61) at 5.20 p.m. He has also admitted that the dying declaration is silent on the point that the Medical Officer was present through out the recording of the dying declaration. He has stated that when he was recording the statement of the victim, her attention was towards her pain only and she was unable to concentrate on any other thing. 6. It has came in the evidence of PW-6 PSI Arjun Idhate that on 12.08.2005, on the instructions of PSO, Zilla Peth Police station, Jalgaon, he had recorded statement (Exhibit-66) of victim Meerabai and she was introduced to him in the civil hospital by on duty CMO. The on duty CMO had examined Meerabai in his presence and had certified that she was in a fit condition to give statement. He has further stated that on his query, the victim had disclosed her name so also the fact that at about 11.00 a.m. the drp {8} Cri. Appeal No.589/2009 appellant came in drunken condition and expressed desire to have physical relations to which she agreed, as at that time her in-laws were not present in the house, however, the appellant had again expressed his desire to have physical relations and this time she had refused and resisted the appellant, therefore, the appellant got enraged and slapped her and assaulted her with kick blows. Thereafter, she shouted for help at that time the appellant poured kerosene on her person and set her ablaze. The contents of the statement (Exhibit-66) were read over to the victim, which she had admitted to be true and correct and had put her signature on the same. He has further stated that after recording of the dying declaration (Exhibit-66), she was again examined by the on duty CMO. The statement (Exhibit-66) was recorded between 5.22 and 5.50 p.m. Thereafter station diary entry was taken in the police station and he informed the Kasoda police station about the incident. In his cross examination, he has admitted that the victim had not disclosed to him that before recording of her statement (Exhibit-66), her another statement was recorded. He has also admitted that he had not asked Meerabai the names of the neighbours, who had extinguished the fire. He denied the suggestion that the victim was suffering from acute pain at the time of recording of her dying declaration. He has also denied that dying declaration (Exhibit-66) was prepared by him in collusion with the relatives of Meerabai. 7. It transpired from the evidence of PW-9, Mahananda drp {9} Cri. Appeal No.589/2009 Patil, that on 14.08.2005, she had interviewed the victim in Civil Hospital, Jalgaon, which was recorded by videographer PW-10 Sali. The victim had disclosed to this witness that the appellant had expressed the desire to have physical relations and on her refusal, the appellant got enraged and poured kerosene on her person and had set her ablaze. PW-9 has admitted in her cross examination that the victim had not disclosed to her that the appellant had consumed liquor at the time of the incident and had ran away from the house. The victim had also not disclosed to her that the appellant had sex with the victim on that day and on his repeated demand, she had refused and hence the appellant was annoyed. She has further admitted in the cross examination that the victim had not disclosed that she herself poured water on her person and had extinguished the fire. The victim had also not disclosed that other persons, who were present at the spot, had poured water and had extinguished the fire. The victim had also not told PW-9 that the victim had disclosed the incident to the persons who had gathered at the spot. She had not enquired with the victim the names of the women who were washing clothes outside her house. PW-9 has very clearly stated that no doctor was present near the victim when she was interviewed. She has also admitted that at the time of the interview the victim was restless and was suffering pains due to burn injuries. She has also admitted that she did not feel it necessary to obtain advice from the Medical Officer as to whether the victim was fit to face the interview, though the doctor was available in the ward. She has also admitted that neither she drp {10} Cri. Appeal No.589/2009 nor Mrs.Mantri has stated that they have personally satisfied that the victim was mentally and physically fit to face the interview. 8. It is in the evidence of PW-8 Rajendra Dhadku Patil, brother in law of the deceased, that on 12.08.2005, he had received a message that his relative at Aadgaon had sustained burn injuries and hence he had rushed to Aadgaon and found that Meerabai was lying there and informed him that the appellant was demanding gold ornaments from her, which she refused and hence the appellant, by pouring kerosene, set her ablaze. The victim had disclosed to him that the appellant used to demand for physical relations during day time and on her refusal, he had poured wine in her mouth and assaulted her and on her resistance to have physical relations, the appellant had set her ablaze by pouring kerosene on her person. The victim had came out of the house shouting for help at that time some women, who were washing clothes, poured water on her person and had extinguished the fire. He had shifted the victim to Civil Hospital, Jalgaon and had informed PW-14 Pandurang. Meerabai expired on 17.08.2005 while under treatment. He has also witnessed the inquest Panchanama conducted on the dead body of Meerabai. It transpired from his cross examination that till 25.09.2005 when the police had recorded his statement, he had not disclosed the information given by victim to anybody. Omission is proved that he has not stated in the statement before police that the victim had disclosed to him that the appellant used to demand sexual pleasures during day drp {11} Cri. Appeal No.589/2009 time and the victim had told the appellant that it was not proper to have physical relations during day time. Further omission is proved that he has not stated in the statement before police that the victim had disclosed to him that the appellant had poured wine in the mouth of the victim. He could not explain as to why he has not disclosed the information received from the deceased to anybody till 25.09.2010. 9. PW-14 Pndurang Kautik Patil, father of the deceased, has stated that the deceased had married with the appellant on 16.06.2005. He has stated that on 12.08.2005, he had received message about the incident and hence he, along with his wife, had reached Civil Hospital, Jalgaon. On his query, the victim had disclosed to him that the appellant forced her to have physical relations, poured wine in her mouth and attempted to have sex, to which she resisted and hence the appellant had slapped her and on her further resistance poured kerosene on her person and had set her ablaze. Clothes on her person had caught fire and she started shouting for help and ran outside the house and some women, who were washing clothes outside her house, had poured water on her person and had extinguished the fire. In his cross examination he has stated that his statement was recorded by the police on 21.09.2005 i.e. after about 40 days of the incident. According to him, he was shocked due to the incident and was in grief and hence was unable to disclose the incident to the police, till 21.09.2005 and on 21.09.2005 he himself had gone to the drp {12} Cri. Appeal No.589/2009 police station. He has admitted that prior to the said incident there was no quarrel between the victim and the appellant. He has also admitted that prior to the incident, he did not feel that there was any dispute between the victim and the appellant and hence he did not bring back the victim to his house. 10. Heard learned counsel for the appellant followed by the submissions of learned APP. 11. Learned counsel for the appellant has urged that the incident in question took place at 11.00 a.m. on 12.08.2005 and the medical papers (Exhibit-108) indicate that the victim was brought in the hospital at 4.30 p.m. and when she was brought in the hospital, her condition was very poor and pain killer injunction like pethidine was administered to her and hence it is difficult to infer that at that time she was in fit state of mind to give the dying declaration. It is further urged that the dying declaration (Exhibit-61) was recorded between 5.10 and 5.20 p.m whereas the second dying declaration (Exhibit-66) was recorded between 5.22 and 5.50 p.m., thus it is clear that the second dying declaration (Exhibit-66) was recorded just after two minutes when her first dying declaration (Exhibit-61) was recorded. Perusal of both the dying declarations indicates that there no consistency with each other. The oral dying declaration given by the victim to PW-8 and PW-14 is totally different from the dying declaration (Exhibit-61) and the dying declaration given by the victim during her interview drp {13} Cri. Appeal No.589/2009 to PW-9. Learned counsel for the appellant has urged that the dying declarations at Exhibit-61 and Exhibit-66, which are recorded with a gap of 2 minutes, are not consistent with each other. It is also urged that the oral dying declaration given by the victim to PW-8 is totally different from her two written dying declarations. Learned counsel for the appellant has further urged that the conduct of PW-8 also play a very vital role. PW-8 is a witness to the Inquest Panchanama (Exhibit-71) drawn on 17.08.2005 still he has not disclosed about the oral dying declaration of the victim till 25.09.2005. It is also urged that PW-8 had not disclosed to the police or to anybody about the alleged oral dying declaration, which creates doubt as to whether any such dying declaration was in fact given by the victim to PW-8. Similar is the case in respect of the alleged oral dying declaration given by the victim to PW-14. 12. Learned counsel for the appellant has further drawn our attention towards the Spot Panchanama (Exhibit-49), which was prepared immediately, in the early hours, on the next day of the incident when the appellant was in police custody since the day of the incident. Recitals of the Spot Panchanama (Exhibit-49) disclose that the scenario at the scene of offence was changed after the occurrence of the incident. It is further urged that though the death of Meerabai is unnatural yet the prosecution is unable to prove that it was a homicidal one. Apart from it PW-3 Nirmala Patil has not supported the prosecution case and Pramilabai Mali, who drp {14} Cri. Appeal No.589/2009 was present at the time of the incident, is not examined by the prosecution before the trial court and hence adverse inference ought to have been drawn by the trial court. 13. Learned counsel for the appellant has also urged that the legal position is settled about the evidentiary value of multiple dying declarations, which are inconsistent with each other. Learned counsel for the appellant has placed reliance on the observations of the Apex Court in the matter of “Uka Ram V/s State of Rajasthan” AIR 2001 SC 1814. The Apex Court, in the said judgment, has observed that the prosecution has to prove, beyond reasonable doubt, that the dying declaration was true, voluntary and not influenced by any extraneous consideration. If the dying declaration is not free from doubt about truthfulness as well as voluntariness, then the accused is entitled for benefit of doubt. Further reliance is placed by the learned counsel for the appellant on the observations of the Apex Court, in the matter of “State of Punjab V/s Parveen Kumar” 2005 (9) SCC 769, wherein it is observed that in the cases, which entirely rest on multiple dying declarations having inconsistency, then while appreciating the credibility of the evidence produced before the Court, the Court must view evidence as a whole and come to a conclusion as to its genuineness and truthfulness. The mere fact that two different versions are given but one name is common in both of them cannot be a ground for convicting the named person. The Court must be satisfied that the dying declaration is truthful. drp {15} Cri. Appeal No.589/2009 If there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declaration. It may be that if there was any other reliable evidence on record, this Court could have considered such corroborative evidence to test the truthfulness of the dying declarations. It is well settled that one piece of unreliable evidence cannot be used to corroborate another piece of unreliable evidence. The learned counsel for the appellant further placed reliance on the observations of the Apex Court in the matter of “Chinnamma V/s State of Kerala” AIR 2004 SC 2816 wherein the Apex Court has observed that contents of two dying declarations are highly contradictory as to infliction of injury by the appellant and the motive given in the two dying declarations is entirely different, in such circumstances, conviction cannot be based on such dying declarations. Similar view is also taken by the Apex Court in the matter of “Dandu Lakshmi Reddy V/s State of A.P.” AIR 1999 SC 3255. Learned counsel for the appellant has also placed reliance on the observations of the Apex Court, in the matter of “Gopal V/s State of MP” 2009 ALL MR (Cri.) 1532 (SC) wherein it is observed that - where two dying declarations are on record then the Court has to consider nature of inconsistencies in the light of various surrounding facts and circumstances. The dying declaration not in conformity with the FIR and earlier declaration as to motive for the crime coupled with other discrepancies as to manner in which she was sprinkled with kerosene and thereafter set on fire, then the discrepancies in last declaration were material drp {16} Cri. Appeal No.589/2009 and it would be unsafe to convict the accused relying on it. Ultimately, reliance is also placed by the learned counsel for the appellant on the observations of the Division Bench of this Court in the matter of “Suresh Arjun Dodorkar V/s State of Maharashtra” 2005 ALL MR (Cri) 1599, to which one of us, P.V.Hardas, J. was a member. The Division Bench, in the said judgment, has observed that in cases where there are multiple dying declarations and acceptance of one dying declaration falsifies the other, the dying declarations have to be necessarily rejected. The dying declaration has to pass all the tests of reliability as the the declarant is not available for cross examination. 14. Thus, it is urged that considering the variance in the dying declarations at Exhibit-61, Exhibit-66 and the oral dying declarations before PW-9 Mahananda, PW-8 Rajendra and PW-14 Pandurang, the same are not reliable. It is also urged that the PW-11 Dr.Firoz Shaikh, who had examined the appellant and had issued injury certificate (Exhibit-99) has stated that he had not stated in the said injury certificate as to the age of the burn injuries sustained by the appellant and hence in absence of any other evidence, it is not safe to infer that the appellant had sustained the burn injuries while setting Meerabai on fire and hence prayed to allow the appeal. 15. Learned APP supported the reasoning recorded by the trial court and prayed to confirm the conviction and sentence. drp {17} Cri. Appeal No.589/2009 According