23. apeal 643-90.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. APPEAL NO. 643 OF 1990 Smt. Mehernunissa Javed Shaikh ] Age - 26 Years, Occ - Household, ] Residing at Anandnagar Zopadpatti, ] Chinchwad Station, Pune. ] Presently lodged at Yeravada Prison, Pune. ] Appellant Versus State of Maharashtra ] Respondent Ms. Rebecca Gonsalvez for the Appellant Ms. M.H. Mhatre, APP for the State CORAM : P.V. HARDAS & N. D. DESHPANDE, JJ. DATE : 7th MARCH, 2011. ORAL JUDGMENT (Per HARDAS, J.): 1. The appellant - original accused who has been convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life by the Sessions Court, Pune by judgment dated 21st October 1989 in Sessions Case No. 220 of 1989, by this appeal questions the correctness of her conviction and sentence. 1 23. apeal 643-90.doc 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. 3. PW 5 Manohar Lalbige, a Special Executive Magistrate was informed on 25th December 1988 by Bundgarden Police to record dying declaration of the person who had sustained burns. He had accordingly received a requisition at Exh 16. He had immediately went to Sassoon Hospital at about 08.30 p.m. and contacted the medical officer on duty and ascertained from the medical officer if the injured was in a fit condition to give his statement. Upon the medical officer certifying that the injured was in a fit condition to give his statement, he requested the police who were present there to withdraw themselves and also asked the police officer to give him a form in which dying declaration is to be recorded. Since the from was not available with the police, PW 5 Manohar Lalbige wrote the contents of the form, particularly the questions of the form. He ascertained for himself the condition of the patient and questioned the injured as to whether he was in his senses. The injured informed him that he was in his senses. PW 5 Manohar disclosed his identity and also questioned the injured about his name. The injured disclosed his name as Javed Abbas Irani. Particulars in respect of the address and age was solicited and thereafter dying declaration came to be recorded. The injured Javed had stated that his mistress had poured 2 23. apeal 643-90.doc kerosene on him and set him on fire. He further stated that he had gone to the house of his mistress Mehrunissa (appellant) at about 05.30 p.m. on 25th December 1988 and while he was sleeping, the appellant poured kerosene on him and set him ablaze. PW 5 Manohar then stated that all the answers of the dying declaration at Exh 17 are in his handwriting. He thereafter obtained toe impression of the injured and after obtaining endorsement of the medical officer, signed the dying declaration. In cross-examination, he has admitted that he had recorded 60-70 dying declarations. He has further stated that the patient had disclosed his name as Javed Abbas Ali-Shaikh. He further admitted in cross-examination that the name "Shaikh" has been scored out and the name "Irani" has been written. He has admitted that the word, "Irani" is not in his handwriting and does not bear his initials. He has then admitted as follows: "It is true that answer to question nos. 4 and 5 are in the handwriting of the police. Even the answer to question no. 7 is in the handwriting of the police." 4. The learned Counsel for the appellant has urged before us that in the light of the admissions given by this witness, no reliance can be placed upon the written dying declaration at Exh 17. The learned Additional Public Prosecutor has urged before us that the dying declaration can be relied upon as all the 3 23. apeal 643-90.doc formalities have been completed by the Special Executive Magistrate. According to us, no reliance can be placed on the said dying declaration. The Special Executive Magistrate PW 5 Manohar Lalbige has admitted that question at sr. nos. 4, 5 and 7 including the answers are written in handwriting of the police. We fail to understand as to how PW 5 Manohar could have abdicated his duties and could have permitted the police to record part of the dying declaration. In that light of the matter therefore according to us no reliance whatsoever can be placed on the dying declaration at Exh 17. 5. PW 8 Santaji Jagtap who was on duty at Bundgarden Police Station chowky on the date of the incident received information from Bundgarden Police Station that one lady had poured kerosene on the injured and had set him ablaze. Accordingly he visited Bundgarden Police Station and was handed over the dying declaration at Exh 17 recorded by PW 5 Manohar Lalbige. PW 8 head-constable Jagtap thereafter proceeded to Sassoon hospital and contacted the medical officer on duty and in his presence recorded the statement of the injured Javed at Exh 22. He obtained toe impression of the left foot of injured Javed on the complaint. The medical officer also signed the said statement. Thereafter he returned to the police station and registered an offence vide Crime No. 608 of 1988 under Section 307 of the Indian Penal Code and arrested the accused. 4 23. apeal 643-90.doc He thereafter entrusted the investigation to PW 9 PSI Asaraji who recorded the scene of offence panchanama at Exh 10 in presence of panch witness and seized some articles which are article nos. 1, 2 and 3. On 27th December 1988, he recorded the statement of six witnesses and on account of the death of Javed, the offence was altered from Section 307 to Section 302 of the Indian Penal Code. Inquest panchanama at Exh 7 came to be prepared in presence of panch witness. PW 9 P.S.I. Asaraji thereafter handed over the investigation to PW 10 P.I. Sarnobat. PW 10 P.I. Sarnobat who was entrusted with the investigation on 28th December 1988, on the same day, recorded the statement of PW 3 Jafar Abbas Irani and three other witnesses. He recorded the statement of PW 6 Tulshiram on 29th December 1988. Thereafter, he recorded the statements of four more witnesses and forwarded the seized property to chemical analyzer along with requisition at Exh 25. The reports of the chemical analyzer are at Exh 26 and 27. As per the reports of the chemical analyzer at Exh 26 and 27, the articles which were seized from the scene of offence, tested positive for presence of kerosene. Similarly, the report at Exh 27 indicates that hair which were sent for analysis was human hair. 6. After completion of investigation, charge sheet against the appellant came to be filed. The trial Court vide Exh 2 framed 5 23. apeal 643-90.doc charges against the appellant for the offence punishable under Section 302 of the Indian Penal Code on the allegations that on 25th December 1988 at about 05.30 p.m, the Appellant had poured kerosene on deceased Javed and had set him on fire and had therefore committed an offence punishable under Section 302 of the Indian Penal Code. The appellant denied her guilt and came to be tried. The prosecution in support of its case examined ten witnesses. The entire prosecution case revolves around the two written dying declarations at Exh 17 and Exh 22 as well as the oral dying declarations made by the deceased to PW 6 Tulshiram, PW 2 Lala Abbas Irani and PW 3 Jafar Abbas Irani. 7. In order to appreciate and effectively deal with the submissions advanced before us by the learned Counsel for the appellant as well as the learned Additional Public Prosecutor for the State, it would be useful to briefly refer to the evidence of the witness. 8. As pointed out by us above, the prosecution has miserably failed to prove Exh 17, dying declaration recorded by PW 5 Manohar Lalbige. The learned Counsel for the appellant has also urged before us that the dying declaration recorded by PW 8 head constable Santaji Jagtap has not been proved as the contents of the dying declaration are not proved. The learned Counsel for the appellant has placed reliance of the judgment 6 23. apeal 643-90.doc of this Court in "Deorao s/o Sonbaji Bhalerao & Anr Vs State of Maharashtra" 2008 ALL MR (Cri) 1921, "Saheblal s/o. Jumassha Sayyad & Anr Vs State of Maharashtra" 2010 ALL MR (Cri) 766 and "Sk. Bibab @ Chunnu s/o. Shaikh Nizam Vs State of Maharashtra" 2010 ALL MR (Cri) 779 to which both of us were parties and "Laxmibai w/o. Maruti Satpute & Ors Vs State of Maharashtra" 2010 ALL MR (Cri) 182, to which one of us i.e P.V. Hardas was a party. The judgments of the Division Bench of this Court adverted to above have clearly held that it was not enough for the witnesses to state and produce the dying declaration recorded by him of the injured but it was incumbent for the scribe to state in Court the contents of the dying declaration. The Division Bench, therefore, came to the conclusion that unless the contents were deposed to, the dying declaration could not be held to have been proved. In that light of the matter, therefore, according to us, no relief at all can be placed on the dying declaration at Exh 22. 9. That leaves us with the oral dying dying declaration alleged to have been made to PW 6 Tulshiram, PW 2 Lala Abbas Irani and PW 3 Jafar Abbas Irani. PW 6 Tulshiram states that he knew the accused because she was staying at Anand Nagar and the distance between his house and that of the accused was about 100 ft. He claims to be knowing deceased Javed. PW 6 7 23. apeal 643-90.doc Tulshiram states that the appellant-accused was the mistress of Javed and Javed used to frequently visit her house. According to him on 25th December 1988 at about 05.15 p.m., he had heard some boys shouting and therefore came out of his house. The boys were shouting "burnt, burnt". PW 6 Tulshiram along with one Shinde went towards the house of the accused and on entering the house of the accused saw the appellant and deceased Javed in the house. Javed had sustained burns and was rolling on the ground. PW 6 Tulshiram states that he poured water on Javed and thereafter removed Javed from the hut. He requested the appellant to provide some covering but the Appellant refused to provide a bed sheet. PW 6 Tulshiram thereafter questioned deceased Javed as to how he had sustained burns and Javed had informed him that the appellant had set him on fire. It appears that Javed pointed out his fingers towards the accused. Thereafter, relatives of Javed removed him to the hospital. 10.The learned Counsel for the appellant has urged before us that no reliance at all can be placed on the evidence of this witness as his statement came to be recorded on 29th December 1988 i.e practically after four days of the incident. According to the learned Counsel for the appellant, this witness had not voluntarily gone to the police and had not narrated as to what the deceased had told him. 8 23. apeal 643-90.doc 11.PW 2 Lala Abbas Irani, uncle of the deceased states that on the date of the incident at about 5.00 to 5.15 p.m., he was going from his shop towards his house and one boy came and informed him that Javed had sustained burns. He therefore, went to Anand Nagar and noticed Javed lying on the ground in front of the hut of the accused. He also noticed that Javed had sustained burns on his hands, chest, stomach and ears. He therefore removed Javed in an auto rickshaw to Lokmanya Hospital at Chinchwad. Javed was unconscious when he was being taken to the hospital. However, on reaching the hospital, it was noticed that Javed was conscious and accordingly, he questioned Javed as to how he had sustained burns. Javed thereupon informed him that the appellant had set him ablaze. 12.The learned Counsel for the appellant has urged before us that no reliance at all can be placed on the evidence of this witness as his statement came to be recorded on 28th December 1988 i.e after about three days of the incident. Though this witness is an uncle of deceased Javed, yet no efforts were made by him to inform the police regarding disclosure made to him by deceased Javed. 13.PW 3 Jafar Abbas Irani, also an uncle of the deceased states that he had learnt that Javed had sustained burns and therefore 9 23. apeal 643-90.doc went to Lokmanya hospital and noticed that Javed was sitting on the chair. He questioned Javed as to the cause of the burns and Javed informed him that the accused had set him ablaze. Thereafter, Javed was shifted to Sassoon Hospital. This witness claims to have informed the police at Sassoon Hospital about what Javed had disclosed him. However, there is no contemporaneous document or oral evidence of any witness in respect of what was informed to the police by PW 3 Jafar Irani. In respect of this witness, the learned Counsel for the appellant has also urged before us that the statement of this witness came to be recorded on 28th December 1988 i.e three days after the incident and that though this witness was the relative of the deceased, it appears that he had not taken any steps for informing the police regarding disclosure made to him by Javed. 14.It is true that a conviction can be rested on the oral dying declarations made to the witnesses. However, the evidence of the witnesses should be of such quality as would inspire the confidence of the Court to accept such evidence. The quality of the evidence should be sterling and should inspire the confidence of the Court. In the present case, we find several infirmities to accept the evidence regarding to the oral dying declarations. PW 6 Tulshiram to whom the oral dying declarations was made does not refer to the presence of PW 2 10 23. apeal 643-90.doc Lala Abbas Irani who had also come to the scene of offence and had taken the deceased in the auto rickshaw. Similarly, PW 2 Lala Irani also does not refer to presence of PW 6 Tulshiram. Apart from that it appears that none of these witnesses had gone to the police and had informed them as to what the deceased had told them. Their statements came to be recorded on 29th December 1988 and 28th December 1988 respectively. In such circumstances therefore we find it extremely difficult to place implicit reliance on the testimony of these two witnesses coupled with that of PW 2 Lala Irani who states that deceased was initially unconscious while the deceased was being taken in the auto rickshaw and upon reaching the hospital had regained his senses. We find this evidence to be extremely artificial and therefore according to us, no reliance at all can be placed on this evidence. 15.In respect of evidence of PW 3 Jafar Irani i.e the uncle of the deceased, we find that the statement of this witness came to be recorded during investigation on 28th December 1988. It does not appear that this witness had also voluntarily gone to the police and had disclosed as to what was narrated to him by the deceased. In such circumstances, therefore, the evidence of this witness does not have a ring of truth which would inspire the Court to implicitly accept the evidence of this witness. 11 23. apeal 643-90.doc 16.It further appears that the injured had made certain disclosure to the medical officer i.e Dr. Deshpande who had examined the injured on being admitted in the hospital. PW 4 Dr. Ravikumar Shetty states that the disclosure was made in his presence and was recorded by Dr. Deshpande. He states that the patient had informed Dr. Deshpande that he had a quarrel with a girlfriend or a mistress and when he was sleeping, a female had poured kerosene on him and set him ablaze. The history recorded by Dr. Deshpande had been proved from the medical papers at Exh 14. The history which is recorded is contrary to the oral evidence of PW 4 Dr. Deshpande. In the history, it is recorded that "alleged history of homicidal / accidental burns as told by the patient. He had quarreled with his girlfriend. He says she is his wife but he has not officially married her in his house." Further part is not legible as it is in the handwriting of Dr. Deshpande but suffice it to state that there is no averment that kerosene was poured by the appellant and that the appellant had set him ablaze. This medical history completely negativates the written dying declarations as well as the oral dying declarations. 17.In the cases resting on the multiple dying declarations, the prosecution must ensure that all the dying declarations corroborate each other. In case of any variance in the dying declarations, it would not be permissible for the Court to pick 12 23. apeal 643-90.doc and choose a particular dying declaration which would constitute the prosecution case. In the present case, we have already held that the written dying declarations cannot be relied upon. The oral dying declarations certainly conflict with the medical history as disclosed by deceased Javed. In such circumstances, therefore, according to us the appellant would be entitled to be given benefit of doubt. 18.Accordingly, this Criminal Appeal is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offences with which she was charged and convicted. If fine is paid by the appellant, the same be refunded to her. Since the appellant is in jail, she be released forthwith if not wanted in another case. [ N. D. DESHPANDE, J ] [ P.V. HARDAS, J ] 13 23. apeal 643-90.doc 14