Cr.Appeal/190/2010 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.190 OF 2010 Shyamrao Yellappa Vajnam, Aged 35 years, Occ. Nil, R/o Deoni, Tq. Deoni, Dist. Latur. ..Appellant Versus State of Maharashtra ..Respondent ... Advocates appearing for : Appellant : Shri N.G.Shah h/f Shri M.A.Khandarkar Respondent : Shri V.D.Godbharale, APP. ... CORAM : A.H.JOSHI & A.R.JOSHI, JJ. Reserved on : September 5, 2011 Pronounced on : September 8, 2011 JUDGMENT : (Per A.R.JOSHI, J.) :- 1. Heard rival arguments for sometime in this Criminal Appeal, preferred by the appellant - sole accused, challenging the judgment and order of conviction, dated 3.5.2008, passed by the learned Additional Sessions Judge, Udgir, District Latur in Sessions Case No.41 of 2006. Present appellant - accused was convicted for the offence punishable under Section 302 of the Indian Penal Code ("IPC" hereinafter) and was sentenced to suffer life Cr.Appeal/190/2010 2 imprisonment and fine of Rs.1,000/-, in default, to suffer rigorous imprisonment for six months. 2. The case of prosecution, in the nutshell, is as under :- On 9.8.2006, in the evening, victim - Laxmi came back from the agricultural work. On return, she noticed that some household articles were scattered in the room and the box in which the silver foot-rings (Vethani) were being kept was found empty. Appellant – accused, husband of victim - Laxmi, was at home. She enquired with him as to what had happened to her silver ornaments. She suspected that the husband might have sold it away in order to satisfy his vice of drinking liquor. On this count, there was a quarrel between victim - Laxmi and her husband appellant / accused. He assaulted victim - Laxmi and asked her to go out of the house. After sometime, she was again called back to the house, as the dispute was temporarily pacified. When victim - Laxmi was asleep, at about 10.00 p.m., she noticed that her husband / accused had latched the door of the room from inside and had poured kerosene on her saree and set her on fire. Cr.Appeal/190/2010 3 Victim – Laxmibai cried for help. Her other relatives, including cousin (brother) of the accused and wife of the brother of the accused rushed to the spot. They tried to extinguish the fire. However, she sustained burn injuries below her waist. The burn injuries were about 32 per cent. Immediately, she was carried to Primary Health Centre, at Deoni and thereafter shifted to Nilanga in another hospital. She was taken to hospital at Nilanga by her parents. The Medical Officer on duty, informed the Nilanga Police Station by sending an intimation. As such, station diary entry was made at Nilanga Police Station in the afternoon of 10.8.2006. Police Officer from Nilanga Police Station - Ashok Gaikwad (PW 6) was deputed to the hospital for recording the statement of victim - Laxmi. He attended the hospital and recorded the dying declaration of victim - Laxmi, which is at Exhibit 30. On the strength of the said dying declaration, offence was registered at Deoni Police Station, under Section 307 of IPC. On the same day, Naib Tahsildar Deepak Akade (PW 9) was requested by the police to record dying declaration of victim - Laxmi. It was also recorded on the same day evening Cr.Appeal/190/2010 4 of 10.8.2006, from 8.00 p.m. to 8.20 p.m., in the presence of attending Medical Officer Dr. S.S.Shinde (PW 10), at the hospital at Nilanga. Said second dying declaration is at Exhibit 38. It is in question and answer form. 4. During the course of the investigation, spot panchanama was conducted. Revealing the name of the appellant/accused from the dying declaration, he was put under arrest. His clothes were seized under panchanama. Statements of witnesses were recorded, including those of sister and mother of the victim. Thereafter, Muddemal articles were seized and sent for chemical analysis and report was obtained in due course. While under treatment in the hospital at Nilanga, victim - Laxmi succumbed to the injuries on 16.9.2006 i.e. after about 36 days of the incident of burning. On death of victim - Laxmi, offence under Section 302 of IPC was inserted in the charge sheet. Dead body was sent for post mortem and report was obtained. The cause of death, as opined in the post mortem dated 16.9.2006 is, “Death due to cardio respiratory arrest due to septicemic shock associated with bilateral palatitis Cr.Appeal/190/2010 5 due to 32 per cent burn.” On completion of the investigation, the charge sheet was filed against the appellant/accused, husband of victim - Laxmi, and the matter was committed to the Court of Sessions and ended in conviction for the offence of murder. 5. The factual position emerging out from the evidence produced before the trial court is as under:- (1) There is no eye witness to the incident of fire. (2) There are two written dying declarations, both dated 10.8.2006, first one recorded by PW 6 Ashok Gaikwad and second one by PW 9 Naib Tahsildar - Shri Deepak Akade. (3) There are two oral dying declarations, one given to PW 1 Rekha Antarge, sister of the victim - Laxmi and another given to PW 2 Satyabhama, mother of victim - Laxmi. (4) PW 5 Shanta Wajnam, wife of elder brother of the accused, did not support the case of the prosecution and turned Cr.Appeal/190/2010 6 hostile. She, allegedly, was the person who rushed to the spot on noticing the commotion. On the contrary PW 5 Shanta has given different story as to how the incident of burning occurred. Her substantive evidence will be discussed, hereinafter, at appropriate place, while discussing the arguments advanced on behalf of the appellant/accused. 6. Bearing in mind, the above factual position, the arguments advanced on behalf of the appellant/accused can be narrated as under :- (1) There is a variance between the oral dying declarations and the written dying declarations, inasmuch as various details are not mentioned in the second written dying declaration, which is in question and answer form, and in which, it is specifically mentioned on 10.8.2006, that the incident of burning occurred 2-3 days prior to recording of the statement. (2) PW 1 Rekha Anterge and PW 2 Satyabhama Anterge are ill-literate women and their mother-tongue is Telugu and according to PW 1 Rekha, it was the cryptic description given as to accused lifted the lamp and poured kerosene on the Cr.Appeal/190/2010 7 saree of victim and set her on fire by matchstick and her statement was recored by the police 2-3 days after the incident, though allegedly, she met victim - Laxmi, her sister, on 10.8.2006 i.e. immediately on the next day of the incident. PW 2 Satyabhama, mother of the victim - Laxmi gave rather a detail account as allegedly told by victim - Laxmi in the hospital. According to PW 2 Satyabhama, victim told her as to the accused assaulted the victim and Ganesh rescued her, at 10.00 pm accused demanded money for liquor and on refusal from the victim, he poured kerosene from the lamp on her person and set her on fire and said fire was extinguished by Santosh. All these details are not mentioned in the written dying declarations. (3) According to PW 6 Ashok Gaikwad, who recorded the first dying declaration, mother of the injured was present in the hospital prior to recording of the statement of the victim and there was no endorsement as to at what time, recording was started and ended and there is no reference about obtaining of thumb impression of which hand, thus leading to the concoction of said dying declaration. (4) PW 9 Naib Tahsildar Deepak Akade, who Cr.Appeal/190/2010 8 recorded the second dying declaration (Exhibit 38), mentioned that when he attended the ward for recording statement of victim - Laxmi, her relatives were present. Said second dying declaration allegedly mentioned that the incident of burning happened 2 to 3 days prior to 10.8.2006, which was, in fact, the next proximate day after the incident. The dying declaration Exhibit 38 shows that no answers are given to the questions at Sr. Nos.10 to 16 and such questions relate to; whether any quarrel took place, whether anybody was present during the quarrel, whether victim was knowing regarding the persons responsible for the incident, whether she can describe the persons, if any known, who brought her to hospital, who met her in the hospital and anybody told her anything in the hospital. (5) Attending Medical Officer (PW 10) Dr.Shinde admitted that after admission in the hospital at Nilanga, treatment of pain relief was given and medicines like sedatives in the form of injection and tablets were given. It is further opined that the effect of such medicines continued for about 10-12 hours and that prior to the admission in the hospital at Nilanga, the patient was earlier admitted in the Primary Health Center, Deoni and Cr.Appeal/190/2010 9 necessary treatment was given to the patient there. These answers lead to possibility that the patient was not on senses and was under the sedative effect of medicines and was unable to give statement as alleged by PW 9 Deepak Akade. 7. Again bearing in mind the above admitted position and the grounds of defence raised on behalf of the appellant/accused, we have carefully scrutinised the substantive evidence of PW 1 Rekha and PW 2 Satyabhama, sister and mother of the victim. The admission given by PW 9 Deepak Akade as to the statement of victim - Laxmi recorded by police after 2-3 days after the incident and not immediately, an alleged oral dying declaration, raises a doubt as to authenticity of the oral dying declaration. So far PW 2 Satyabhama, mother of the victim is concerned, according to her, the details were given by victim - Laxmi as to how she noticed the scattering of domestic articles after coming back from the labour work to house and as to missing of pair of silver foot rings. PW 2 Satyabhama also deposed as to the narration given by victim - Laxmi to the effect that victim - Laxmi was assaulted by her husband, Ganesh intervened and thereafter on Cr.Appeal/190/2010 10 that night, there was incident of pouring kerosene and setting victim - Laxmi on fire and one Santosh trying to extinguish the fire. Admittedly, said Ganesh and Santosh are not examined by the prosecution 8. As against the substantive evidence of PW 1 Rekha and PW 2 Satyabhama, substantive evidence of PW 5 Shanta is required to be considered. She is wife of the elder brother of the appellant/accused. She is residing in the neighbourhood of the accused. She heard the shouts from the direction of the house of the accused on the relevant night, hence along with her husband and children, she went to the house of accused. The door was open. She entered and noticed that victim - Laxmi was engulfed by flames. She and her husband extinguished the fire by putting quilt on victim - Laxmi. She was taken to Government Hospital at Deoni. PW 5 Shanta made enquiries with her as to how she sustained burn injuries and on that, victim disclosed that when the victim was lifting the kerosene lamp it fell down and her saree caught fire. This witness was put the questions in the nature of cross examination by the Cr.Appeal/190/2010 11 learned Additional Public Prosecutor as she has deviated from her story given to the police and contents of portions marked Exhibits "A" and "B" were put to her. However, said witness denied having mentioned so in her police statement. 9. Now, coming back to the written dying declarations, which are at Exhibits 30 and 38, respectively recorded by PW 6 Ashok Gaikwad and PW 9 Deepak Akade, at the cost of repetition, it must be mentioned that the first dying declaration is in narrative form giving all the details, whereas the second one is in the question and answer form and admittedly the answers to the questions 10 to 16 are not mentioned in Exhibit 38 as they were not answered by the victim. In Exhibit 30, first dying declaration, it is specifically mentioned that initial quarrel and assault on the victim by the accused was pacified by one Ramesh, brother in law of the victim and after the initial incident, victim came out of the house and was subsequently taken in the house by the accused and when she was asleep, at about 10.00 p.m., she was set on fire by pouring kerosene on the folds of her saree and she sustained Cr.Appeal/190/2010 12 burn injuries below her waist, till her both legs. Due to the incident of burning, she raised shouts and the relatives of the husband i.e. Santosh and Ishwar - children of her brother in law, and one Shanta (PW 5) - wife of elder brother of the accused came and extinguished the fire by putting quilt on her person. As against this, the second dying declaration is in the question and answer form and devoid of any such details as mentioned in the first dying declaration. Again at the cost of repetition, it is to be mentioned that the victim was silent while answering the questions 10 to 16 regarding any quarrel, persons responsible for the quarrel and the victim knowing such persons and as to who brought her to the hospital and whether anybody told her anything. It is also significant to note that in the answer to the question as to when the incident of burning occurred, the victim gave answer that it occurred 2-3 days prior. On this aspect and the effect of answers given by victim, we are not oblivious of the situation that the victim may not be in a position to give all the details or incidental circumstances and it would suffice if the victim gives a precise history pointing the Cr.Appeal/190/2010 13 authorship of the incident to a particular individual. However, still considering the substantive evidence of attending Medical Officer Dr.Sheshrao Shinde (PW 10), as to administration of sedative to the victim in the hospital at Nilanga and necessary preliminary treatment given to her in Primary Health Centre, Deoni, a reasonable doubt can be entertained as to whether the victim was in a position to give true and correct version of the incident and in that event, the benefit of doubt must go in favour of the accused. As such, on this aspect, in our view, the learned Sessions Judge has erred in appreciating the evidence of dying declarations and convicting the appellant/accused on the sole basis of said dying declarations of the victim, who was alive for more than 36 days in the hospital and was having only 32 per cent burn injuries. 10. In support of the arguments challenging the authenticity of the dying declarations of the victim, shelter of the ratio propounded by the following authorities was taken, including the decision of this Bench in Criminal Appeal No.143 of Cr.Appeal/190/2010 14 2010 Madhukar Ashruba Shinde Vs. State of Maharashtra, dated August, 17th 2011 (unreported). Another is the decision in the case of Sunil Kashinath Raimale Vs. State of Maharashtra (2006 CRI.L.J.589). We have gone through the ratio laid down in the above decisions. It is needless to mention that the binding effect of any cited decision depend on similarity of the fact situation or the decision being on the law point. Still considering those decisions as above, in our view, the present matter is required to be decided on the backdrop of the facts in the present case and in that event, we are of the view that the sole reliance on the dying declarations of the victim cannot be placed in order to hold the appellant guilty for the offence of murder. 11. In the result, the appeal succeeds and same is accordingly disposed of with following order:- ORDER Criminal Appeal No.190 of 2010 is allowed. Impugned judgment and order passed by the Additional Sessions Judge, Udgir, in Sessions Case No.41 of Cr.Appeal/190/2010 15 2006, dated 3.5.2008 is set aside. The appellant be set at liberty forthwith, if not required in any other crime. Fine, if paid, be refunded back to the appellant/accused. (A.R.JOSHI, J.) (A.H.JOSHI, J.) ... akl