- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.215/2009 1] Sharad Madhukar Rayate, age 35 yrs., occu.agri., 2] Madhukar Hansraj Jire (Rayate), age 62 yrs., occu.agri., 3] Manjulabai @ Malatibai w/o Madhukar Rayate, age 58 yrs., occu.household, All r/o Nyahlod, Tq. & Dist.Dhule. ...Appellants.. (Org.accused nos.1 to 3) Versus The State of Maharashtra. ...Respondent... ..... Shri Joydeep Chatterji, Advocate for appellants. Shri N.R. Shaikh, APP for respondent. ..... - 2 - CORAM: P.V. HARDAS & A.V. POTDAR, JJ. DATE: 25.10.2010 ORAL JUDGMENT (Per P.V. Hardas, J.) : 1] The appellants, who stand convicted for offence punishable u/s 498-A r/w 34 and 302 r/w 34 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.1,000/- with no separate sentence being awarded for offence punishable u/s 498-A, by the Additional Sessions Judge-2, Dhule, by judgment dated 31.3.2009, in Sessions Case No.120/2006, by this appeal question the correctness of their conviction and sentence. 2] Such of the facts as are necessary for the decision of this appeal may briefly be stated thus: It appears that the dying declaration of Sarala @ Trupti came to be recorded by the Executive Magistrate on 23.7.2006 from 7-50 to 8-00 p.m. In the aforesaid dying declaration, injured Sarala, who had been admitted in the Civil Hospital with burns, stated that she had accidentally sustained injuries. In the said dying declaration, she had, however, stated that her husband used to harass her as he was suspecting her character. The first dying declaration is at Exhibit 26, which was admitted by the accused in response to the notice u/s 294 of the Code of Criminal Procedure. The second dying declaration of Sarala came to be recorded on 23.7.2006 at Exhibit 27 in the Civil Hospital at Dhule and in the said dying - 3 - declaration also she had stated that she had accidentally caught fire, which resulted in the burn injuries. At the time of recording both the dying declarations namely dying declarations at Exhibits 26 and 27, the Medical Officer had examined Sarala and had opined that she was in a fit condition to give her statement and accordingly the statements came to be recorded. Thereafter, it appears that PW 3 Sangita Salve, sister of injured and PW 4 Shobhabai, aunt of injured, submitted an application before the investigating officer requesting for recording another dying declaration of Sarala. Accordingly, the third dying declaration of Sarala came to be recorded by PW 2 Laldas Nagarale, Executive Magistrate. The said dying declaration at Exhibit 33 came to be recorded on 24.7.2006 at 00-30 hours. In the said dying declaration at Exhibit 33, injured Sarala had stated that her husband used to insist on her to bring money from her parents and was also assaulting her accordingly. On 23.7.2006 at about 6-00 p.m., she was caught by her in-laws and her husband poured kerosene and set her ablaze. In the said dying declaration, she had categorically stated that her statement had been recorded earlier. On the basis of the said statement of injured Sarala at Exhibit 33, an offence came to be registered against the accused. The scene of the offence – panchanama at Exhibit 21 came to be recorded. Injured Sarala succumbed to her injuries and, therefore, post mortem on the dead body of Sarala came to be conducted by PW 1 Dr.Sandip Patil. PW 1 Dr.Sandip Patil noticed that Sarala had sustained 95% burns and he opined that cause of death was shock following thermal burns. Th post mortem report is at Exhibit 29. - 4 - 3] Further to the completion of investigation, a charge-sheet against the appellants came to be filed. On committal of the case to the Court of Sessions, the trial Court, vide Exhibit 10, framed charge against the appellants for offence punishable u/s 498-A r/w 34 and 302 r/w 34 of the Indian Penal Code. The accused denied their guilt and claimed to be tried. The prosecution examined six witnesses in support of its case and relied principally upon the dying declaration of Sarala at Exhibit 33 as well as the two oral dying declarations alleged to have been made to PW 3 Sangita and PW 4 Shobhabai. The trial Court accepted the evidence and accordingly convicted and sentenced the appellants. 4] Before we advert to the submissions advanced before us by Shri Joydeep Chatterji, learned counsel for the appellants and Shri N.R. Shaikh, learned APP on behalf of the respondent, it would be useful to advert to the evidence of the prosecution. 5] Undisputedly, the two dying declarations recorded at Exhibits 26 and 27 speak about Sarala sustaining the burns accidentally. In both the dying declarations, she exonerates the appellants completely of having set her ablaze. In both the dying declarations, however, there is a passing reference to the accused ill-treating Sarala, particularly the accused no.1 – husband - as he was suspecting her character. Oral dying declaration came to be made by Sarala to PW 3 Sangita, who is her sister. PW 3 Sangita states that Sarala @ Trupti was married to the appellant no.1 in 2005. Initially, for a period of one month, she was - 5 - treated well and thereafter she was mentally harassed by her parents in law. Certain amount was demanded from Sarala, which demand could not be fulfilled by her relatives. Sangita further states that on 23.7.2006, she received a message that Sarala had sustained the burns and was admitted in the Civil Hospital. She states that she along with her husband, her elder sister and her brother in law came to the Civil Hospital at Dhule. Sarala is alleged to have informed PW 3 Sangita that her father in law, mother in law had caught her and her husband had poured kerosene and had set her ablaze. Sangita further states that on the next day, Sarala succumbed to her injuries. In cross examination, she has admitted that she had gone to the hospital at about 7-45 to 8-00 p.m. and Sarala had been admitted in the casualty ward. She states that she had learnt that dying declaration of Salara had been recorded. She states that she along with her brother one Pradip Bhaskar had gone to the Police Station and had informed them as to what Sarala had told them regarding the harassment and, therefore, her dying declaration came to be recorded subsequently. She has admitted to have given written application in the Police Station. PW 4 Shobhabai, aunt of deceased Sarala, states that her son Pradip had informed her on 23.7.2006 about Salara being admitted in the hospital with burns. Accordingly, along with her husband and her son, she had gone to the hospital and had questioned Sarala as to how she had sustained the burns and Sarala is alleged to have informed them that she was held by her father in law and mother in law, and her husband had set her ablaze. In cross examination, she has admitted that the Police had informed them that dying declaration of Salara had been recorded. She has also admitted that her - 6 - face was burnt. She has also admitted that she along with others had gone to the Police Station and Sangita had informed them as to what Sarala had stated to them. The Police officers in the Police Station had informed that since dying declaration of Salara had been recorded once, another dying declaration could not be recorded. She, however, states that statement of Sarala came to be recorded afresh. 6] The prosecution has examined PW 2 Laldas Nagarale, Executive Magistrate, who is alleged to have recorded the third dying declaration at Exhibit 33. PW 2 Laldas Nagarale, Executive Magistrate, deposes about receipt of the communication asking him to record the dying declaration of the injured and about going to the hospital and requesting the Medical Officer to ascertain the condition of Sarala and upon doctor certifying that Sarala was conscious and was able to give statement, he recorded the statement of Salara. In his evidence, he speaks about what Sarala had told him. He states that on 23.7.2006 at about 6-00 p.m., husband of Sarala, who was suspecting her character, had insisted Sarala to bring money from her parents and on that count, husband used to assault Sarala. PW 2 Laldas Nagarale does not speak about Salara having stated before him that she has held by accused nos.2 & 3 and accused no.1 had poured kerosene and had set her ablaze. In that light of the matter, therefore, according to us, there is absolute no evidence at all to lead to an inference that the accused had caught Sarala and had poured kerosene and had set her ablaze. - 7 - 7] The two dying declarations recorded at Exhibits 26 and 27 have been admitted by the accused. In the said dying declarations, there is passing reference about ill-treatment. Ill-treatment is also referred to by PW 3 Sangita and PW 4 Shobhabai. PW 3 Sangita and PW 4 Shobhabai also do not state that deceased Sarala had informed them that the earlier dying declarations had been recorded on account of threats or under coercion of the accused. In the dying declaration at Exhibit 33, there is no reference about this fat. In such circumstances, therefore, according to us, even if it is assumed that though the contents are not proved in evidence, yet the recitals of Exhibit 33 could be read into evidence, the conflicting dying declarations impel us not to place any reliance upon the dying declaration at Exhibit 33. It is well established principle of law that in cases resting on multiple dying declarations, all the dying declarations have to be consistent with each other, particularly prelude to the incident, the incident itself and the number of accused. In the present case, the two dying declarations at Exhibit 26 and 27 completely exonerate the accused inasmuch as Salara claims to have sustained burn injuries. The contents of the dying declaration at Exhibit 33 have not been proved by PW 2 Laldas Nagarale as he does not depose about the same. In such circumstances, therefore, according to us, apart from the vague evidence in respect of the ill-treatment, there is no evidence whatsoever that the accused had poured kerosene on Sarala and had set her ablaze. The accused, therefore, in the light of what has been stated by us above, would be entitled to be given the benefit of doubt. - 8 - 8] Accordingly, the criminal appeal is allowed and the conviction of the appellants is hereby quashed and set aside and the appellants are acquitted of the offence with which they were charged and convicted. Fine, if paid by them, be refunded to them. Since the appellant no.1 is in jail, he be released forthwith, if not wanted in any other case. Bail bonds of the appellant nos.2 & 3 stand cancelled. (A.V. Potdar, J.) (P.V. Hardas, J.) ndk/cr25101013