Cra.Appeal No.6 of 2010 Cra.Appeal No.174 of 2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Criminal Appeal No.6 Of 2010 Ashok s/o Dagadu Hawale, Age 40 years, Occupation : Agriculture R/o Waghe-Babhulgaon, Taluka Kaij, District Beed. .. Appellant. Versus The State of Maharashtra. .. Respondent. -------- Smt. S.S. Jadhav, Advocate holding for Shri. S.S. Panale and Shri. Santosh Dambe, Advocates for the appellant. Shri. K.G. Patil, Additional Public Prosecutor, for respondent. -------- With Criminal Appeal No.174 Of 2010 The State of Maharashtra, Through Police Station Kaij Taluka Kaij, District Beed. ... Appellant. Versus Cra.Appeal No.6 of 2010 Cra.Appeal No.174 of 2010 2 Dagadu S/o Maroti Hawale, Age 65 years, Occupation : Agriculture, R/o Waghebabhulgaon, Taluka Kaij, District Beed. ... Respondent. ------------ Shri. K.G. Patil, Additional Public Prosecutor, for appellant - State. Smt. S.S. Jadhav, Advocate holding for Shri. S.S. Panale and Shri. Santosh Dambe, Advocates for the respondent. ---------- CORAM: NARESH H PATIL & T.V. NALAWADE, JJ. Dated : 19th APRIL 2011. ------------- JUDGMENT (Per Naresh H Patil, J.): 1) The appellant – Ashok Dagadu Hawale was charges along with acquitted original accused No.2 – Dagadu Maroti Hawale for an offence punishable under section 302 read with section 34 of the Indian Penal Code in Sessions Case No.45 of 2008 by the Ad- hoc Additional Sessions Judge, Ambajogai. By Cra.Appeal No.6 of 2010 Cra.Appeal No.174 of 2010 3 judgment and order dated 19th December 2009 the original accused No.2 – Dagadu Maroti Hawale was acquitted and the appellant was convicted for the offence for which he was charged and sentenced to suffer imprisonment for life with fine of Rs.1000/-. 2) The prosecution case is that the appellant is brother-in-law of the deceased Archana, who was married to his brother Babasaheb Hawale on 26th April 2006. The deceased started residing with her husband in a house which had two blocks. In another block rest of the family members were residing. The incident in question took place on 29-5-2008. The prosecution alleges that after marriage Archana was treated well for 15 days. Thereafter, the appellant started harassing the deceased on account of her behaviour and for not doing household and field work. Once Archana was brought by the appellant and one Hanumant Wagh to Cra.Appeal No.6 of 2010 Cra.Appeal No.174 of 2010 4 her parental house. Archana was persuaded thereafter and sent back. It is alleged that she was treated well. Thereafter she was beaten up and driven out. In October/November 2007 she was again persuaded and sent back by her parents. 3) The prosecution alleges that in the mid night of 29-5-2008 and 30-5-2008 at about 2 to 2.30 a.m. while Archana was sleeping on the floor near the door of the house and her husband was sleeping on a cot, the appellant and his father Dagadu came to the spot and poured kerosene on the person of Archana and set her on fire. Due to sudden incident, Archana started shouting and crying and came outside the room. Husband of Archana and nephew Vaibhav tried to extinguish fire by pouring water. Archana was brought to the hospital at Beed by her husband, the appellant Ashok and one Bhimrao Limbraj Wagh in the jeep of Cra.Appeal No.6 of 2010 Cra.Appeal No.174 of 2010 5 one Mahadeo Bansidhar Darade. It is alleged that after she was admitted in the Government Hospital Beed PW 4 Balaji Jadhav, A.S.I., attached to the Police Booth Chauki informed the Executive Magistrate, PW 3 Ganpat Yedke. PW 3 reached the hospital and after ascertaining her physical and mental condition from PW 8 Dr. Satish Tambde, recorded statement of deceased Archana (Exhibit 44). Thereafter PW 4 Balaji Jadhav recorded statement of Archana at about 10.00 a.m. (Exhibit 47). As the condition of Archana was deteriorating she was shifted to Aurangabad by the appellant and her brother Navnath (PW 2) to Ashwini Hospital run by Dr. Yelikar. PW 6 Mahadu Landge registered an offence under section 307 read with section 34 of the Indian Penal Code at Crime No. 122/2008 on 30-5-2008. The investigation was taken over by Police Inspector, PW 7, Sudarshan Munde. The appellant was arrested on 30th May 2008 and the Cra.Appeal No.6 of 2010 Cra.Appeal No.174 of 2010 6 acquitted accused Dagadu was arrested on 31st May 2008. The police started investigation. Spot panchnama (Exhibit 49) was conducted and statements of witnesses were recorded. It is alleged that Archana was treated in Ashwini Hospital, Aurangabad from 29th May 2008 to 2nd June 2008. She was thereafter shifted to Government Hospital, Beed, where she succumbed to the burn injuries on 8th June 2008 at 9.00 a.m. Inquest (Exhibit 30) was conducted and the body was sent for post mortem. PW 1 Dr. Baban Jadhav conducted post mortem on 8-6-2008. The doctor opined that, the cause of death was due to 60% superficial to deep burns. Charge sheet came to be filed by the police and the case was committed to the Court of Sessions. On 15-9-2008 charge was framed against the appellant and his father to which they pleaded not guilty and claimed to be tried. Cra.Appeal No.6 of 2010 Cra.Appeal No.174 of 2010 7 4) The prosecution case mainly rests on two dying declarations. First dying declaration was recorded between 9.00 and 9.30 a.m. by Ganpat Yedke (PW 2), the Naib Tahsildar, in the Government Hospital Beed. The second dying declaration was recorded by PW 4 - A.S.I. Balaji Jadhav between 10 and 10.30 a.m. and the third dying declaration which was brought on record by the defence was recorded by Prabhakar Pagar ASI attached to Police Station Kranti Chowk Aurangabad (Exhibit 68). 5) The prosecution has examined Navnath Shinde, brother of the deceased, as PW 2. PW 3 Ganpat Yedke is Naib Tahsildar who recorded the first dying declaration (Exhibit 44). PW 4 is Balaji Jadhav ASI attached to Beed City Police Station at the relevant time, who recorded the second dying declaration at Exhibit 47. PW 5 Satish Kendre is a panch to the spot panchnama (Exhibit 49). PW 6 is Mahadu Landge, Cra.Appeal No.6 of 2010 Cra.Appeal No.174 of 2010 8 Police Head Constable who registered the offence under section 307 at Crime No.122/2008 against the appellant and his father. PW 7 Sudarshan Munde is the Investigating Officer who conducted the investigation and filed charge sheet. PW 8 Dr. Satish Tambde is the Medical Officer, Civil Hospital Beed. 6) PW 2, Navnath Shinde, brother of the deceased Archana, deposed before Court that the original accused persons were ill-treating deceased Archana and harassing her. They were not treating her properly. On 29-5-2008 at about 6.00 a.m. he received a message from Bapurao Hawale that Archana had sustained burn injuries due to fall of kerosene lamp on her body. PW 2 was residing at a nearby distance from the spot therefore he could rush to see Archana and he could reach the place at about 8 a.m. When the witness met Archana she told him that at about 2.30 Cra.Appeal No.6 of 2010 Cra.Appeal No.174 of 2010 9 a.m. the appellant Ashok Hawale and Dagadu Hawale set her on fire by pouring kerosene on her person. It is alleged that she told her brother that the appellant and his father set her on fire as they were suspecting her character. Archana told him that her husband and cousin Vaibhav tried to extinguish fire. Sarpanch and her husband admitted her in the hospital. In the cross-examination the witness stated that Archana was living in a house having two separate blocks. Archana and her husband were occupying northern side portion of the house while the accused and his family and in laws were residing in southern side of the house. The witness stated that condition of Archana was serious and in a critical condition she was shifted to Aurangabad. The witness further stated that when Archana was admitted in Ghati Hospital Aurangabad the appellant Ashok was with him. The witness denied that intimation was given by Dr. Yelikar Cra.Appeal No.6 of 2010 Cra.Appeal No.174 of 2010 10 to police after Archana was admitted in the hospital and police visited the hospital and recorded statement of Archana. 7) PW 3 Ganpat Yedke is Naib Tahsildar who recorded first dying declaration of the deceased. This witness has duly proved the dying declaration. The witness stated that, deceased blamed the appellant and his father for setting her on fire. He further deposed that Archana was provided with saline and oxygen. In respect of recording of dying declaration the witness admitted that there were some overwritings in the statement at two places. 8) PW 4 is Balaji Jadhav, A.S.I. who was attached to Beed City Police Station. On 29-5-2008 when he was on Government Hospital Chowki duty he received information from the medical officer. The witness went to Burn Ward at 9.45 a.m. He contacted Cra.Appeal No.6 of 2010 Cra.Appeal No.174 of 2010 11 medical officer and after examining the patient he recorded statement of deceased Archana. Archana told him that her age was 19 years and thereafter she narrated the incident wherein she was set on fire. The witness has proved the second dying declaration which is at Exhibit 47. The witness stated that the statement recorded by the Executive Magistrate at Exhibit 44, the statement recorded by this witness at Exhibit 47 and the MLC papers were sent to Kaij Police Station. In the cross-examination the witness denied that oxygen was being given to Archana but admitted that I.V. was applied. The witness was not aware as to at what time the Executive Magistrate came in the Ward neither the time when Archana was shifted to Aurangabad for further treatment. 9) PW 5 Satish Kendre is panch on the spot panchnama. He stated before the Court that the Cra.Appeal No.6 of 2010 Cra.Appeal No.174 of 2010 12 appellant and his family used to reside in the farm house. He has proved the contents of spot panchnama which is at Exhibit 49. The witness stated that he could see kerosene lamp which was lying separately and an empty can. 10) PW 6 is Mahadeo Landge, Police Head Constable. 11) PW 7 Sudarshan Munde is the investigating officer. The officer in the examination-in-chief deposed that at the spot of the incident he found kerosene lamp lying near the door and the clothes i.e. petticoat and saree were found at a short distance. The articles were seized under panchnama and were sealed. The articles seized were identified by the investigating officer and the document was marked as Exhibit 49. The witness stated that the farm house and the cattle shed of the accused are adjacent. The witness Cra.Appeal No.6 of 2010 Cra.Appeal No.174 of 2010 13 admitted in the cross examination that ASI Prabhakar Pagar had recorded statement of Archana but he was not aware as to what statement was made by deceased Archana. The witness stated that though he was handed over medical treatment papers maintained by Dr. Yelikar he did not file those papers along with the charge sheet. The witness further deposed that initially he recorded statements of relatives of Archana wherein they stated that Archana suffered injuries due to accidental burn. The witness admits that statements of husband of the deceased and the nephew were not recorded by him during the course of investigation. The spot was shown by one Rajabhau Hawale but the investigating officer did not record his statement. 12) Dr. Satish Tambde is PW 8 who examined the deceased Archana before her dying declaration was recorded. The witness stated that Archana was Cra.Appeal No.6 of 2010 Cra.Appeal No.174 of 2010 14 conscious and oriented to give her statement. The witness stated that Exhibit 44 and Exhibit 47 were recorded after he examined deceased Archana. The witness did not bring case papers of 29th May 2008 with him while he was deposing in Court but the case papers of 2-6-2008 were with him. 13) The defence examined DW 1 Prabhakar Pagar (Exhibit 64) who was ASI attached to Police Station Kranti Chowk Aurangabad. This witness recorded third dying declaration of the deceased wherein she stated that, she suffered injuries due to fall of kerosene lamp (Chimni) on her person and she does not have suspicion against anybody. This witness had recorded statements at Exhibits 65 and 68 which are duly proved. In the cross-examination the witness states that there is no endorsement made by the Medical Officer Cra.Appeal No.6 of 2010 Cra.Appeal No.174 of 2010 15 on the statement of deceased Archana but the endorsement was obtained on a separate paper in respect of the physical and mental condition of the patient. 14) The learned Counsel Smt. S.S. Jadhav submitted that there are inconsistent dying declarations. In the first two dying declarations, (Exhibits 44 and 47), deceased Archana had blamed the appellant and his father, who according to her, set her on fire by pouring kerosene in the mid night hours. But in the third statement recorded by DW 1 Prabhakar Pagar at 11.55 p.m. on the same day the deceased had come out with different version of the incident. According to deceased she suffered burn injuries due to accident and falling of Chimni (kerosene lamp) on her person. The counsel submits that in the light of the facts, the evidence brought on record and all attending circumstances, the dying Cra.Appeal No.6 of 2010 Cra.Appeal No.174 of 2010 16 declarations (Exhibits 44 and 47) did not inspire confidence. They are not truthful and for want of corroboration these dying declarations cannot be relied upon. On the same evidence the trial court acquitted father of the appellant whereas, the trial Court committed error in convicting the appellant for a serious offence of committing murder of deceased Archana. 15) The learned counsel for the appellant submits that the appellant himself accompanied the brother of the deceased PW 2 Navnath to Aurangabad and put in efforts to save life of the deceased. This signifies innocence of the appellant. PW 2 did not refer to presence of husband of the deceased. As regards the spot of incident the counsel submits that the appellant and his father were residing separately as there are two blocks in the same premises. The manner in Cra.Appeal No.6 of 2010 Cra.Appeal No.174 of 2010 17 which the incident took place, according to the prosecution, is not possible in view of the fact that in the midnight hours in presence of husband of the deceased, the appellant and his father would come to the block of the deceased and pour kerosene on her person and quietly leave the place. The counsel submits that, the Investigating Officer has suppressed part of the investigation from the Court. It was his duty to place on record whatever investigation was conducted by him and the relevant documents in that regard. The third dying declaration recorded by DW 1 - Prabhakar Pagar was withheld by the investigating officer in spite of the fact that he was aware of the same. The counsel submit that, there was no motive for the appellant and his father to commit such a ghastly act of pouring kerosene on the person of Archana who was wife of brother of the appellant Ashok. The prosecution has suppressed the material facts from the Cra.Appeal No.6 of 2010 Cra.Appeal No.174 of 2010 18 Court and therefore adverse inference is required to be drawn, according to the counsel. The investigation was not done in honest and transparent manner, according to the counsel. 16) The learned Additional Public Prosecutor, Shri. K.G. Patil submits that considering the facts and the evidence on record in its entirety, the two dying declarations could be relied upon by this Court. There is no reason for disbelieving the dying declarations. The deceased was in a fit state of mind to make statement. The theory of the defence that deceased suffered burn injuries due to accident is ruled out. The deceased survived for ten days. The Additional Public Prosecutor submits that, on the available evidence, father of the appellant was acquitted by the trial Court. The State had preferred an appeal against the order of acquittal which was admitted by this Court. The learned Additional Public Prosecutor further submits Cra.Appeal No.6 of 2010 Cra.Appeal No.174 of 2010 19 that there was no reason for deceased Archana to falsely involve the appellant and his father. The evidence of the brother of the deceased, PW 2 Navnath supports and corroborates the version of the deceased Archana. The deceased was treated badly by the appellant and his father. The husband of the deceased Archana was a person of simple nature and the family affairs were controlled by the appellant Ashok. This signifies that, the appellant's likes and dislikes were material in the family. Therefore, the learned APP submits that the prosecution has proved its case beyond reasonable doubt and due to insignificant and irrelevant infirmities pointed out by the defence, the dying declarations recorded by the competent officers cannot be discarded. 17) We have perused the original record and the judgment of the trial Court and considered the Cra.Appeal No.6 of 2010 Cra.Appeal No.174 of 2010 20 submissions advanced before us. It is settled principle in law that, an order of conviction could be passed against an accused based on a dying declaration. It is not always necessary to ask for corroboration to the dying declaration but the test is that the dying declaration must be truthful and inspiring confidence in the prosecution case. It must provide credibility so as to sustain order of conviction. Testing the dying declaration from these angles, the facts and peripheral circumstances dying declarations are to be seriously scanned and scrutinized. In case of inconsistent dying declarations it is not always that the prosecution case is to be discarded in toto. Even if there are more than one dying declaration on record, in a given facts and circumstances of the case, the Court is entitled to give a go-by to a dying declaration and accept another dying declaration which provides credence and inspires confidence. Cra.Appeal No.6 of 2010 Cra.Appeal No.174 of 2010 21 18) In the facts of the present case it has come on record that both families i.e. family of the appellant and his father and the deceased were residing in two separate blocks though in the same premises. The appellant was a young girl when she got married to brother of the appellant on 26th April 2006. The incident in question took place within two yeas of her marriage. At the time of incident, according to deceased, her age was 19 years. It has come on record that the appellant was the Karta of the family and the husband of the deceased did not have much say. He seems to be a person of simple nature. 19) The question here is as to what motive the appellant and his father could have to cause bodily injury to the deceased Archana which ultimately resulted in her death. The motive as pleaded by the prosecution was that there were allegations against Cra.Appeal No.6 of 2010 Cra.Appeal No.174 of 2010 22 the deceased Archana in respect of her character and her lack of inclination to do household and field work. In her statements Exhibits 44 and 47 the deceased stated that the accused persons were harassing her and not treating well by accusing her. There is variance in respect of as to whether the deceased Archana was sleeping on the floor or on the cot. According to one version the deceased was sleeping near the door on the floor and her husband was sleeping on the cot and in the other version she was also sleeping on the cot. There is a small water pond near the house and after the deceased was set on fire she rushed to the water pond to save her life. According to deceased Archana her husband and his nephew tried to extinguish fire. 20) Archana suffered 62% burn injuries. She was taken to the Government Hospital Beed where Cra.Appeal No.6 of 2010 Cra.Appeal No.174 of 2010 23 during course of treatment her statements were recorded and as her condition was deteriorating the appellant Ashok accompanied with the brother of the deceased PW 2 Navnath took her to Ghati Hospital at Aurangabad and thereafter she was shifted to private hospital of Dr. Yelikar. This conduct of the appellant is required to be seriously considered in the light of the allegation of the prosecution. 21) Though the investigating officer claimed to have collected clothes and other articles and seized them under panchnama, there is nothing on record as to whether those articles were sent for Chemical Analyzer's report and the report was received. It is a serious lapse on the part of the investigating officer. Another serious lapse is withholding of the third dying declaration of the deceased recorded by DW Pagar. In the evidence of PW 7 Sudarshan Munde it has come on Cra.Appeal No.6 of 2010 Cra.Appeal No.174 of 2010 24 record that DW Pagar had recorded a statement of Archana. In spite of the fact that this dying declaration and other papers were received by him, he preferred not to file those papers along with the charge sheet. In fact, considering the way the investigation has been conducted an explanation is required to be obtained from the investigating officer in respect of these serous lapses. The question arises as to whether this officer was competent enough to investigate such serious offence. The investigating officer in his deposition has stated that initially he recorded statements of relatives of Archana. Archana sustained accidental burn injuries. The investigating officer has admitted before Court that he did not record statement of husband of deceased Archana and his nephew who extinguished fire. It is surprising to note that nobody disputed the presence of the husband of Archana. The prosecution is suppressing role played by the husband Cra.Appeal No.6 of 2010 Cra.Appeal No.174 of 2010 25 of deceased Archana. Learned counsel Smt. Jadhav submitted that in fact the statement of the husband of the deceased recorded by the police is part of the copy of the charge sheet received by the accused. 22) In the third dying declaration recorded by DW Pagar at 11.15 p.m. the deceased Archana stated that she suffered accidental burn injuries due to fall of Chimni (kerosene lamp) on her person. She stated that she had no suspicion or complaint against anybody. 23) The learned counsel appearing for the appellant referred to two judgments : (1) Sharda v. State of Rajasthan, 2010 AIR SCW 1. In the facts of the case, the Apex Court observed in paragraph 34 thus: Cra.Appeal No.6 of 2010 Cra.Appeal No.174 of 2010 26 "34. Though a dying declaration is entitled and is still recognized by law to be given greater weigh- tage but it has also to be kept in mind that accused had no chance of cross-examination. Such a right of crossexamination is essential for eliciting the truth as an obligation of oath. This is the reason, general- ly, the court insists that the dying declaration should be such which inspires full confidence of the court of its correctness. The court has to be on guard that such statement of deceased was not as a result of either tutoring, prompting or product of imagination. The court must be further satisfied that deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the aforesaid re- quirement and also to the fact that declaration was true and voluntary, undoubtedly, it can base its con- viction without any further corroboration. It is not an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. In this regard, we may profitably quote the following para from (1985) 4 SCC 476