(1) CRI. APPEAL 596.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 596 OF 2009 Gorakhnath S/o Changdeo Shinde, Age : 26 years, Occu.: Agril., R/o Pimperkheda, Tq. Gangapur, Dist. Aurangabad .. APPELLANT VERSUS The State of Maharashtra .. RESPONDENT ... Mr. S.G. Ladda, Advocate for the Appellant Mr. B.J. Sonawane, APP for the respondent-State ... CORAM : V.R. KINGAONKAR, J. DATE OF RESERVING THE JUDGMENT : 21ST OCTOBER, 2010 DATE OF PRONOUNCING THE JUDGMENT : 29TH OCTOBER, 2010 JUDGMENT:- 1. This Appeal is directed against the judgment rendered by the learned Additional Sessions Judge-4, Aurangabad in Sessions Case no. 45 of 2007. By that judgment, the appellant has been convicted for the offences punishable under section 376 and 506 of the Indian Penal Code and has been sentenced to suffer rigorous imprisonment for seven years and (2) CRI. APPEAL 596.2009 to pay fine of Rs.2000/- in default to suffer simple imprisonment for three months on the first count and to suffer rigorous imprisonment for six months and to pay fine of Rs.200/- in default, to suffer simple imprisonment for 15 days on the second count. Both the substantive sentences were directed to run concurrently. 2. The appellant is elder brother of original accused no.3 Bandu. Both the brothers alongwith their parents were jointly tried for offences punishable under sections 376, 504, 498-A and 306 r/w. 34 of the Indian Penal Code. Out of the four accused persons, the appellant alone was found guilty for the offences of rape and criminal intimidation for which he has been sentenced. 3. The prosecution case, stated briefly, is that deceased Vanita was married to younger brother of the appellant, namely, Bandu on 18.3.2006. She was residing in the matrimonial home situated in the agricultural land gat no. 56, which is jointly held by her husband i.e. Bandu and the appellant (3) CRI. APPEAL 596.2009 alongwith their parents. She was being harassed and troubled by the husband, his parents and the appellant on account of non-fulfillment of unlawful demand of Rs.50000/- (Fifty Thousand Rupees). They had demanded the amount as they wanted to purchase land at Waluj. Her parents were unable to comply with the demand. Her matrimonial life had become miserable. On 9th November, 2006 at about 5.00 pm. she was alone in the house. The appellant returned home and asked her to give him betel-nut. She gave him betel-nut. He thereafter asked her to give him drinking water. She gave him the drinking water. She was thereafter engaged in sweeping the south- west corner room of the house. There was darkness in that room. The appellant went from her behind and held her tightly. She attempted to rescue from his hug. He however pushed her down, got lifted her saree and petticoat and, thereafter, fell on her person. He forcibly committed sexual intercourse with her. Soon thereafter, he left the house and went towards the agricultural land. She lateron disclosed the incident of rape to her husband i.e. (4) CRI. APPEAL 596.2009 Bandu after he returned back home. Her husband was annoyed. Her husband told her that he will bury the appellant alive and she shall not disclose it to anyone else. Her husband told her as to how dared the appellant did such an act. Her husband went outside the house. The appellant was on terrace of the house. Her husband also thereafter went on the terrace of the house in angry mood. On seeing her husband going on the terrace, Vanita apprehended that there will be incident of mutual fight between the two brothers. She was scared and panicked. She closed the room from inside. She picked up a cannister containing kerosene and emptied it on her person. She thereafter set fire to her person. On seeing her burning inside the room, her husband and the mother-in-law barged in the room. They extinguished the fire. She was rushed to Bembde Hospital at Aurangabad in the same evening. She was given the required medical treatment by the Medical Practitioner i.e. PW Dr. Ramakant Bembde. Her condition became deteriorated due to the burn injuries and, therefore, she was shifted to the (5) CRI. APPEAL 596.2009 Government Hospital in the same night. She was treated as indoor patient in the Government Hospital for about 10 days. She died on 19.11.2006 as a result of 92% deep burns. In the meanwhile, her Police statement was recorded by PW P.S.I. Narhari Shinde, who was attached to Waluj Police Station. So also her written dying declaration was recorded by the Special Judicial Magistrate on 10.11.2006. 4. On basis of the material gathered during course of investigation, the appellant alongwith his parents and the brother came to be chargesheeted for the offences of matrimonial cruelty, abetment of the suicide of Vanita and the criminal intimidation. 5. At the trial, the prosecution examined in all 7 (seven) witnesses in support of its case. On behalf of the appellant, DW 1 Smt. Sarubai was examined in order to show that the story of alleged rape committed by the appellant is unacceptable and that her death was of accidental nature due to fall of burning oil lamp on her person. The learned Additional Sessions Judge, came to the conclusion (6) CRI. APPEAL 596.2009 that the offences of rape and the criminal intimidation are duly proved against the appellant whereas the charges pertaining to the offences of matrimonial cruelty and abetment to the suicide of deceased Vanita are not proved against the appellant as well as the other three accused persons. In keeping with such findings, the impugned judgment has been rendered. 6. Heard learned Advocate for the appellant and learned APP. With their assistance, I have perused the record and proceedings of the Sessions Case. 7. The points which need determination are as follows:- (I) Whether it is proved beyond reasonable realm of doubt that the appellant committed forcible sexual intercourse with deceased Vanita in the relevant evening, against her will? (II) Whether the impugned judgment of conviction and sentence is legal and proper? (7) CRI. APPEAL 596.2009 8. Before I embark upon scrutiny of the prosecution evidence, let it be noted that there is absolutely no evidence on record to show that the appellant had threatened deceased Vanita at the time of the commission of alleged act of forcible sexual intercourse. It is also important to notice that PW 2 Lata and PW 3 Baban did not support case of the prosecution. They are mother and father of the deceased-Vanita. It is the case of the prosecution that Vanita gave oral dying declaration to her parents about the rape committed by the appellant being the reason of her committing the suicide. So also, DW 1-Smt. Sarubai did not subscribe to the prosecution story. She alone was present in the farm house when the incident occurred. Her evidence does not show that the appellant went behind Vanita in the south-west corner room of the house around 5.00 pm. Her version purports to show that she was able to see all the three rooms from the place where she was sitting throughout the day. Her version purports to show that after return to home at about 6.00 pm., Vanita cooked the food for the family members. Her (8) CRI. APPEAL 596.2009 husband returned home immediately after her coming back after the day's work. 9. The entire edifice of the prosecution case hinges upon the two dying declarations which were recorded by the Special Judicial Magistrate and the Police Officer. Naturally, the core question involved in this Appeal is whether the learned Sessions Judge was justified in placing implicit reliance on the said two dying declarations though the oral dying declarations allegedly made by Vanita to her parents are not proved and that her first dying declaration indicated that she was caught by fire due to accidental fall of an oil lamp on her person. In other words, it is essential to find out whether the oral dying declarations and the first information given by deceased Vanita to the Medical Practitioner and the Police could be totally brushed aside by giving preference to the written dying declarations recorded by the Special Judicial Magistrate and the Police Officer. Can these dying declarations be appropriately re-conciled, is the moot question involved in the present Appeal. (9) CRI. APPEAL 596.2009 10. As stated before, the parents of deceased Vanita did not corroborate the prosecution case regarding the oral dying declaration made by her to them. Neither of them has stated that she informed them about the horrendous act of rape committed by the appellant on her in the said evening. There is no other oral dying declaration made by deceased Vanita to any other witness. 11. What appears from version of PW 4 Dr. Ramakant Bembde is that Vanita was admitted in his private hospital on 10.11.2006 at about 12.30 am. He noticed that she had received 76% deep burns. He recorded history of the burns. The record (Exh.34) purports to show that Vanita gave history of accidental burns due to bursting of the chimney (oil lamp). This was the first statement made by her at the outset when she was admitted in the private hospital of PW Dr. Ramakant Bembde. It is difficult to say that PW Dr. Ramakant Bembde recorded incorrect history of the alleged incident. He is an independent Medical Practitioner. His version (10) CRI. APPEAL 596.2009 purports to show that in the relevant night, at about wee hours i.e. around 4.00 am. he examined the patient i.e. Vanita. He noticed that she was conscious and well oriented to give her statement. He therefore issued opinion letter (Exh. 36). He admits that the relatives of Smt. Vanita got her discharged at about 8.20 pm. on 10.11.2006 for treatment at the higher centre. 12. Coming to the version of PW 5 Smt. Prachi, who was called upon to record the dying declaration, it would be explicit that she visited Bembde hospital, Aurangabad at about 6.20 pm. on 10.11.2006. She contacted PW 4 Ramakant Bembde and requested him to certify about orientation of Smt. Vanita. However, then Dr. Bembde expressed opinion to the effect that Vanita was not in a position to give her statement at that time. This opinion was given by PW Dr. Ramakant Bembde at about 7.00 pm. Her version purports to show that again in the same night at about 11.00 pm, she was called upon to record the statement of injured Vanita. She gathered information and came to know that Vanita was shifted (11) CRI. APPEAL 596.2009 to the Government Hospital. She visited the Government Hospital at about 11.30 pm. She contacted the Medical Officer PW Dr. Hammbarde. The latter gave opinion to the effect that Smt. Vanita was in physical condition to give her statement. The testimony of PW Smt. Prachi reveals that she was working as Special Judicial Magistrate at the relevant time. It also may be gathered from her version that she got satisfied herself that Smt. Vanita was well oriented and could give her statement. She deposed that she recorded the statement of injured Smt. Vanita in question and answers form. She endorsed the dying declaration after it was affirmed by the injured patient i.e. Smt. Vanita. 13. Though PW Smt. Prachi states that she recorded the dying declaration (Exh.40) in question and answers form as per the version of Vanita yet her testimony does not show as to what was the narration of deceased Vanita in regard to the alleged incident of rape committed by the appellant. Her testimony does not show as to how Smt. Vanita (12) CRI. APPEAL 596.2009 narrated to her the story regarding the rape and the inter-connection between such incident of rape and her suicide. The question, therefore, is whether such kind of dying declaration can be implicitly relied upon when it does not reproduce the narrative part of the dying declaration of deceased Vanita? A Division Bench of this Court in "Jivan Tulsiram Dhavali and anr. Vs. State of Maharashtra" (2008 ALL MR (Cri.) 2018) held that the verbal statement made by the dying person to the Magistrate is made admissible by virtue of section 32(1) of the Evidence Act and not the document prepared by the Magistrate. It is further held that the document prepared by the Executive or Special Judicial Magistrate would not amount to deposition or recording of evidence so as to attract the presumption under section 80 of the Evidence Act. The law therefore requires that the Special Judicial Magistrate ought to reproduce the verbatim narration made by the deceased victim, who gave the statement in anticipation of the death, and that part of the evidence will fall within the ambit of section 32(1) (13) CRI. APPEAL 596.2009 of the Evidence Act. The testimony of PW Smt. Prachi cannot be regarded as substitute in place of the proof of the contents of the dying declaration of Smt. Vanita. In this view of the matter, the recorded dying declaration (Exh.40) can hardly be used as substantive piece of evidence to infer that deceased Smt. Vanita narrated the incident of rape committed by the appellant to the Special Judicial Magistrate. 14. At this juncture, it is significant to notice that in the so called dying declaration (Exh. 40) Vanita allegedly narrated to PW Smt. Prachi that her husband returned home at about 5.45 - 6.00 pm. and she immediately disclosed the incident of rape to him. Thereupon her husband (Bandu) told her that he would bury the appellant alive and she shall not disclose the same to anyone else. He also is said to have told her as how dared the appellant did commit such act. There is inherent contradiction between this part of the dying declaration with the dying declaration (Exh.43) recorded by PW 6 P.S.I. Narhari Shinde in the same evening. The Police (14) CRI. APPEAL 596.2009 statement recorded by PW P.S.I. Narhari Shinde purpors to show dying declaration of Smt. Vanita that she disclosed the incident of rape committed by the appellant at about 9.00 pm. while she and her husband had gone inside the bedroom for sleeping. Her said dying declaration in the form of Police statement further shows that her husband (Bandu) told her whether it was appropriate for the appellant to commit such an act and why she did not disclose the incident immediately to him. She then told her husband that because he was engaged in taking the evening meals, it was not so disclosed. Needless to say there is significant discrepancy regarding the time when the incident was disclosed by her to her husband. 15. It may be gathered from the medical history narrated by injured Smt. Vanita to PW Dr. Ramakant Bembde that initially, at the first available opportunity, she gave statement to the effect that a burning oil lamp had fallen on her person and therefore, due to such freak accident she received the burn injuries. (15) CRI. APPEAL 596.2009 16. The testimony of PW PSI Narhari Shinde purports to show that a kerosene lamp was recovered under seizure panchanama (Exh.20) but it was not sent for chemical analysis. He admits that Head Constable Shri Shinde had recorded first statement of injured Vanita vide exhibit 50. That statement also does not attribute the charge of rape to the appellant and his conduct being the reason for the alleged suicide of Vanita. The said statement (Exh. 50) is part of the chargesheet and, therefore, cannot be overlooked. PW P.S.I. Narhari Shinde admits, un-equivocally, that he had made enquiry with Head Constable Shinde regarding the statement of Vanita which came to be recorded vide Exhibit 50. He admits: "It is true that I came to know that, he (H.C. Shinde) has recorded statement of deceased Vanita. It is true that I found that Head Constable Shinde has recorded the statement of deceased Vanita correctly, as per her say." (16) CRI. APPEAL 596.2009 17. There is no reason as to why H.C. Shinde was not examined in order to explain the circumstances under which he recorded the statement of injured Smt. Vanita in the relevant night. In other words, there is no tangible reason to dis-lodge the statement (Exh.50) which was recorded at the first available opportunity when injured Smt. Vanita was physically and mentally fit to give her statement. The testimony of PW P.S.I. Narhari Shinde purports to show that he did not record statement of Smt. Sarubai, i.e. grandmother-in-law of deceased Smt. Vanita. It has come on record that Smt. Sarubai was present in the house when the alleged incident of rape is said to have occurred. As stated before, DW 1 Smt. Sarubai has not corroborated the case of the prosecution. On the other hand, she deposed that no such incident had occurred. Her evidence purports to show that in the night time, she had awaken due to shouts of injured Smt. Vanita and thereafter, noticed that Smt. Vanita had received burn injuries. Her version purports to show that Bandu and Jijabai extinguished the fire. The appellant also examined (17) CRI. APPEAL 596.2009 DW 2 Bhagirath in support of his plea of alibi. It is not necessary to discuss the evidence of DW 2 Bhagirath inasmuch as the plea of alibi is untenable in view of the fact that the farm house is situated in same agricultural land where the appellant and his family members were allegedly working on the relevant day. 18. The testimony of PW 1 Kailas corroborates the spot panchanama (Exh.28). The rough sketch reveals that a nicker was found in the room and the house is situated amidst the agricultural land gat no. 56. The spot panchanama does not give any clue about the forcible sexual intercourse allegedly committed in south-west room. 19. The legal position regarding credibility of dying declaration is succinctly illustrated in "Lakhan V. State of Madhya Pradesh" (2010) 8 S.C.C. 514. It is observed that in case there are multiple dying declarations and there are inconsistencies between them, generally the dying declaration recorded by the higher Officer like a Magistrate can (18) CRI. APPEAL 596.2009 be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness. In the present case, there are multiple dying declarations. One set of the dying declarations would indicate that Smt. Vanita had received accidental burn injuries due to fall of kerosene oil lamp on her person. Another set of the dying declaration, however, attributed the cause of her death to the incident of rape committed by the appellant. Out of the two dying declarations, the dying declaration recorded by Smt. Prachi, the Special Judicial Magistrate, is not legally acceptable in view of the lacuna pointed out earlier. The testimony of PW P.S.I. Narhari Shinde cannot be implicitly relied upon in view of the attending circumstances and particularly when the dying declaration recorded by him is at subsequent stage. It has come on record that parents of deceased Smt. Vanita and other relatives had accompanied her from the hospital of PW Dr. Ramakant Bembde and were in her company till her death. (19) CRI. APPEAL 596.2009 20. In absence of any other corroborative evidence, mere dying declaration recorded by the Police Officer will not be sufficient to convict the appellant. In any case, the dying declaration recorded by PW P.S.I. Narhari Shinde does not provide sufficient substratum to support the conviction for the appellant of the alleged offence of rape and criminal intimidation. In fact, the entire investigation is misdirected. The husband of deceased Smt. Vanita could be the witness in the present case. Instead, he was arraigned as original accused no.4 in the Sessions case notwithstanding the fact that there were no serious allegations or tangible material to reach conclusion that Smt. Vanita was harassed or maltreated by him and his parents in the matrimonial home. The Investigating Officer did not care for navigating the investigation in proper direction. It will have to be stated therefore that the entire cookie did crumble. 21. Taking overall view of the matter, it may be stated that the appellant deserves benefit of (20) CRI. APPEAL 596.2009 reasonable doubt created due to the multiple dying declarations, the lacuna found in the process of recording of the dying declaration by the Special Judicial Magistrate-PW Smt. Prachi and also the lacuna in recording of her statement before the Sessions Court as well as the hostility of the parents of the deceased Smt. Vanita. Hence, the Appeal is allowed. The impugned judgment of conviction and sentence is set aside. The appellant is acquitted for the offence punishable under section 376 and 506 of the Indian Penal Code. He shall be released immediately, if not required in any other case, and the amount of fine, if has been deposited, shall be refunded to him. Sd/- [V. R. KINGAONKAR, J.] arp