APEAL-1432-03
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1432 OF 2003
1. Nirmala Maruti Gunjal, )
Age : 22 years )
)
2. Malanbai Ramesh Gunjal, )
Age : 45 years )
)
3. Sakhubai Baban Shinde, )
Age : 65 years )
ig )
4. Maruti Ramesh Gunjal, )
Age : 24 years )
)
All r/o. 6th Chawl, Behind Sanjay )
Nagar Zopadpatti, Deolali Camp, )
Taluka and District Nashik ) ... Appellants /
) (Orig. Accused Nos.1 to 4)
Versus
The State of Maharashtra, )
Through the Police Inspector, )
Deolali Camp Police Station ) ... Respondent
Mr. Ganesh Gole with Mr. S.R. Pathak and Mr. A.R. Singh
for the Appellants.
Mrs. V.R. Bhosale, APP, for the Respondent-State.
CORAM : V.M. KANADE &
A.M. THIPSAY, JJ.
TH OCTOBER, 2011.
RESERVED ON : 11
TH DECEMBER
PRONOUNCED ON : 7 , 2011.
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APEAL-1432-03
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JUDGMENT {PER A.M. THIPSAY, J.} :
1. This Appeal is directed against the judgment and order dated 15th November, 2003, passed by the 5th Additional Sessions Judge, Nashik, in Sessions Case No.79 of 2003, convicting the Appellants, who were the accused in the said case, of offences punishable under Section 302 of the IPC read with Section 34 of the IPC, Section 451 of the IPC read with Section 34 of the IPC and Section 342 of the IPC read with Section 34 of the IPC. The learned Additional Sessions Judge, Nashik, sentenced the Appellants as follows :
(i) For the offence punishable under Section 302 of the IPC read with Section 34 of the IPC - Imprisonment for life and a fine of Rs.1,000/- with a default sentence of R.I. for two months.
(ii). For the offence punishable under Section 451 of the IPC read with Section 34 of the IPC - R.I. for one year and a fine of Rs.500/- with a default sentence of R.I.
for one month.::: Downloaded on - 09/06/2013 17:59:03 :::
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(iii). For the offence punishable under Section 342 of the IPC read with Section 34 of the IPC - R.I. for six months.
The sentences were directed to run concurrently.
2. The Appellants, being aggrieved by the said judgment and order, have appealed to this Court. It would be convenient to refer to the Appellants, by the position held by them in the trial Court.
3. The prosecution case before the trial Court was in brief as follows :
. Sangita Mahadu Deore - the deceased - had been residing in the rented premises belonging to the Accused No.2 Malanbai since about six months prior to 15th October, 2002. On 15th October, 2002, at about 8:30 p.m., Sangita had gone out for answering the call of nature. That, at that time, the Accused No.4 Maruti - who is the son of Accused No.2 Malanbai -
came there and caught Sangita's hand. The Accused No.4 Maruti tried to ::: Downloaded on - 09/06/2013 17:59:03 ::: APEAL-1432-03 4 Dixit commit rape upon her. As such, Sangita shouted and on hearing her shouts, the Accused No.2 Malanbai and the Accused No.1 Nirmala, who is the wife of the Accused No.4 Maruti, came there. Though Sangita told them what had happened, Nirmala (Accused No.1) and Malanbai (Accused No.2) accused Sangita of having illicit relations with the Accused No.4 Maruti and blamed her for that. Nirmala (Accused No.1) and Malanbai (Accused No.2) caught hold of Sangita and dragged her to her (Sangita's) house, from the spot. The Accused No.4 Maruti also went along with them. After Sangita was brought to her house, Malanbai (Accused No.2) poured kerosene over her body. Malanbai (Accused No.2) also gave a match box to Nirmala (Accused No.1) and told her to light a match stick. That, at that time, Accused No.3-Sakhubai came there and she instigated Nirmala and Malanbai (the Accused Nos.1 and 2) to kill Sangita. Accused No.3-Sakhubai gagged the mouth of Sangita and, therefore, Sangita could not shout. The Accused No.4 Maruti had, by this time, closed the door of Sangita's house from inside. Accused No.1-Nirmala lit match stick and set Sangita on fire.
Sangita cried for help. The occupants of the neighbouring houses gathered there. One of them covered Sangita with a blanket. Sangita came outside and, while she was standing on the otla of the house of the Malanbai ::: Downloaded on - 09/06/2013 17:59:03 ::: APEAL-1432-03 5 Dixit (Accused No.2), Smt. Lilabai Ahire (PW-6) - sister of Sangita's husband -
came there. Sangita narrated the incident to Lilabai (PW-6). Lilabai (PW-6) noticed that all the accused were standing around Sangita.
4. Thereafter, Lilabai (PW-6) and the other villagers took the accused, as well as Sangita, to Police Station. Sangita was taken to Bytco Hospital, Nashik Road, by the Head Constable Rajendra Markad (PW-10). Rajendra Markad (PW-10) had given a report to the Special Judicial Magistrate Rafique Ahmed Fakir Mohd. Sayyed (PW-8), who came to Bytco Hospital.
He got Sangita examined through Dr. Bhaskar Gaikwad (PW-7), the Medical Officer, who was on duty at that time. Thereafter, Sayyed (PW-8) recorded the statement of Sangita (Exhibit-40). A case was registered and investigation was carried out by PI Rajendra Pagar (PW-12). On 16th October, 2002, he visited Bytco Hospital, got Sangita examined from Dr. Shilpa Kale (PW-11), the Medical Officer, who was on duty, and, thereafter, recorded the statement of Sangita (Exh.58).
5. Sangita succumbed to the burn injuries on 16th October, 2002 at about 1:30 p.m. Inquest Panchnama (Exhibit-16) was drawn. Spot Panchnama ::: Downloaded on - 09/06/2013 17:59:03 ::: APEAL-1432-03 6 Dixit (Exhibit-57) was also drawn and certain articles were seized from the spot.
The accused were arrested. The dead body of Sangita was sent for post-
mortem examination. The articles seized during investigation were sent to the Chemical Analyzer for analysis and opinion. Statements of several persons were recorded in the course of investigation. On completion of investigation, Charge-Sheet was filed, pursuant to which the accused were tried and convicted as aforesaid.
6. Mr. Gole, the learned Advocate for the Appellants/Accused, has contended that the judgment of conviction, as recorded by the Additional Sessions Judge, Nashik, is not in accordance with law. He submitted that whole of the prosecution case was based only on the dying declarations made by Sangita. He submitted that there were totally three dying declarations of Sangita, that had been brought on record, but none of these dying declarations are convincing or reliable. He also submitted that the version in these dying declarations is not the same and, that, all these dying declarations are inconsistent with one another.
7. Smt. V.R. Bhosale, the learned APP for the Respondent-State, on the ::: Downloaded on - 09/06/2013 17:59:03 ::: APEAL-1432-03 7 Dixit other hand, submitted that in all the dying declarations, Sangita has implicated the accused persons. She submitted that there was no reason for discarding the dying declarations and, that, the conviction of the accused persons on the basis of the dying declarations is proper and legal.
8. We have carefully gone through the entire evidence - oral and documentary - adduced during the trial. We have also gone through the impugned judgment.
9. Before proceeding further, it may be mentioned that, that death of Sangita was caused due to burn injuries is not in dispute. The memorandum of the post-mortem examination (Exhibit-14) shows that Sangita had sustained 99% superficial to deep burn injuries. The cause of death, as opined by Dr. Wagle and Dr. Nikumbh, the Medical Officers who conducted the post-mortem examination, is cardio respiratory arrest due to shock due to 99% superficial too deep burns. Thus, that Sangita died an unnatural death due to burn injuries is undisputed.
10. It is true that there is no direct evidence about what the accused ::: Downloaded on - 09/06/2013 17:59:03 ::: APEAL-1432-03 8 Dixit persons had done, in the nature of testimony of any eye witnesses. It is true that the case against the accused persons is based only on the dying declarations made by Sangita.
11. There are three dying declarations in this case.
. The first in point of time is the oral dying declaration, allegedly, made by Sangita to Lilabai (PW-6). This was, allegedly, made immediately after the incident i.e. at about 8:30 p.m. on 15th October, 2002. However, its disclosure to the investigating agency was made only on the next date, after other dying declarations of Sangita were recorded.
. The second dying declaration is one made to the Special Judicial Magistrate Shri Sayyed (PW-8), which was reduced into writing by Shri Sayyed (PW-8) (Exhibit 40).
. The third dying declaration was made to the Investigating Officer Rajendra Pagar (PW-12) record of which was made in writing Exhibit-58 by him. It was at about 10:00 a.m. on 16th October, 2002.
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12. It would be proper to examine the version of Sangita as appearing in these dying declarations.
13. Since the second dying declaration and the third dying declaration have been reduced into writing (Exhibit 40 & Exhibit 58 respectively), it would be proper to first consider Sangita's version as appearing therein. The oral dying declaration made by Sangita to Lilabai (PW-6) not having been reduced into writing by Lilabai (PW-6) may require a little more elaboration and can be conveniently considered thereafter.
14. So far as the dying declaration made to the Special Judicial Magistrate Shri Sayyed (PW-8) is concerned, the same has been recorded between 11:40 p.m. to 11:55 p.m. on 15th October, 2002. The evidence relevant to this dying declaration - apart from the evidence of Shri Sauyed (PW-8) - is of Dr. Bhaskar Gaikwad (PW-7), who had made an endorsement on the record of this dying declaration that the patient was fully conscious and in a condition to give valid statement. However, instead of discussing the evidence of these witnesses, it would be better to straightway come to the version of ::: Downloaded on - 09/06/2013 17:59:03 ::: APEAL-1432-03 10 Dixit Sangita, as appearing in the record of the said dying declaration (Exhibit-40).
15. The dying declaration was recorded in question and answer form. The record shows that Special Judicial Magistrate Shri Sayyed (PW-8) first explained to the patient that he had come to record the statement of the patient. The patient Sangita was then asked about the time, when she, reportedly, said that it was night time. She was asked whether she knew Marathi, to which she answered in affirmative and, thereafter, on being further questioned, gave her name, age and address. In reply to a question as to who were residing with her in her house, she answered as her husband, she herself and two children. She was then asked as to how she had sustained burn injuries and, that, she should state about it without being afraid of anyone. The reply given by her may be reproduced here :
"vkt jk¥h 9 rs 9-30- ek÷;k ?kjh ekyu ckbZ vkf.k fueZykckbZ vkY;k- R;k nks?kkuh feGwu ek>;k vaxkoj jkWdsy Vkdy o fueZykckbZuh dkMh ykoyh o fu?kwu xsY;k-"
. Translated in English, it would read thus :::: Downloaded on - 09/06/2013 17:59:03 :::
APEAL-1432-03 11 Dixit "that today at about 9:00 p.m. to 9:30 p.m., Malanbai (Accused No.2) and Nirmalabai (Accused No.1) came to my house. They both poured kerosene over my body and Nirmalabai (Accused No.1) set me on fire by a match stick and then they went away."
16. Then the next question that was asked to her was what happened thereafter, to which Sangita replied that the persons from the lane extinguished the fire and then the sister-in-law of Sangita brought her to the Police Station and then to the Dispensary. She was then asked as to what was the reason for the said two accused having set her on fire, whereupon Sangita replied that Malanbai (Accused No.2) used to allege that Sangita had an affair with Malanbai's son Maruti (Accused No.4) and, therefore, they had set her on fire. After asking some further questions, Sangita was asked whether she wanted to say anything more, to which she replied in negative. The statement was then read over to her, which she claimed to have understood and as having been recorded truly and correctly. However, thereafter, Sangita again said that there were three persons :- Malanbai (Accused No.2), Nirmala (Accused No.1) and Sakhubai (Accused No.3).
17. Now, coming to the dying declaration (Exhibit-58), apart from the ::: Downloaded on - 09/06/2013 17:59:03 ::: APEAL-1432-03 12 Dixit evidence of Investigating Officer Rajendra Pagar (PW-12), who recorded the same, the evidence of Dr. Shilpa Kale (PW-11) is also relevant, in as much as, Dr. Shilpa Kale (PW-11) had examined Sangita before her statement was recorded and had certified that Sangita was conscious and in a state of giving the statement. This dying declaration (Exhibit-58) was recorded on 16th October, 2002 at about 10:00 a.m. This has not been recorded in question and answer form. The version of Sangita, as appearing in this statement, is a much detailed one, the substance of which is as follows :
. That she used to reside as a tenant in the premises owned by Malanbai (Accused No.2) since about six months prior to the incident and, that, she had been residing there with her husband and two children. That, on 15 th October, 2002, in the night, she was in her house with two children and her husband, who used to work on a Pav-Bhaji Cart, had gone out for the said work. That, as usual, Sangita went for easing herself in the open ground near her locality, when Maruti (Accused No.4) - son of Malanbai (Accused No.2) - suddenly came to that place and caught her hand. Since there was light, Sangita identified him and questioned him as to what he had done, whereupon he attempted to commit rape on her. Sangita then started ::: Downloaded on - 09/06/2013 17:59:04 ::: APEAL-1432-03 13 Dixit shouting and attempted to rescue herself from him and, that, at that time, Maruti's mother Malanbai (Accused No.2), Maruti's wife Nirmala (Accused No.1) came there on hearing Sangita's shouts and started asking Sangita as to what had happened. Sangita told them that Maruti (Accused No.4) caught her hand and had attempted to commit rape on her and, that, Maruti (Accused No.4) should be told by the said women not to behave in that manner. However, instead of advising Maruti (Accused No.4), Malanbai (Accused No.2) and Nirmala (Accused No.1) alleged that Sangita had an affair with Maruti (Accused No.4) and, that, she was spoiling Maruti (Accused No.4); and saying so, both of them started assaulting Sangita by fists and kicks. Maruti (Accused No.4) was there itself. The said two women dragged Sangita to Sangita's house and while dragging, they were assaulting and abusing her. They were saying that "today Sangita should be finished". When Sangita was dragged inside her house by the said two women, Maruti (Accused No.4) also came along with them and all started abusing Sangita. Nirmala (Accused No.1) had caught Sangita and, at that time, Malanbai (Accused No.2) went out and returned with a plastic kerosene bottle in her hand. While saying that 'let us finish Sangita', she poured the kerosene in the said bottle on the body of Sangita and at the ::: Downloaded on - 09/06/2013 17:59:04 ::: APEAL-1432-03 14 Dixit same time gave a match box, which she was having in her hand, to Nirmala (Accused No.1) and asked Nirmala (Accused No.1) to set Sangita on fire.
When Sangita started shouting, Sakhubai (Accused No.3) also came there and started saying that Sangita was exceeding limits and, that, she should be finished. Saying so, Sakhubai (Accused No.3) gagged the mouth of Sangita by one hand and held her tightly. Sangita was unable to shout because of the gagging. At that time, Nirmala (Accused No.1) lighted a match stick and set the saree, which Sangita was wearing, on fire. Sangita started shouting, when Maruti (Accused No.4) closed the door. Sangita caught fire fully. Due to her cries, persons in the neighbourhood assembled there and came inside the house. By that time, Sangita had been fully burnt and had fallen down. All the accused were in her house only. That, Sangita was unable to state who were the other persons from the neighbourhood, who had come there, as she did not know them. The accused persons were telling those persons that Sangita herself had poured kerosene over her person and had set herself on fire. Somebody put a chadar on the body of Sangita and Sangita came out of the house in that condition itself. While Sangita was standing on the otla of Malanbai's house, Sangita's sister-in-law Lilabai (PW-6) came to that place running and Sangita informed to her as to ::: Downloaded on - 09/06/2013 17:59:04 ::: APEAL-1432-03 15 Dixit what had happened. Nirmala (Accused No.1) and Malanbai (Accused No.2), who were standing there, started telling Lilabai (PW-6) that Sangita should be taken to dispensary, whereupon Lilabai (PW-6) told them to help her.
Nirmala (Accused No.1), Malanbai (Accused No.2) and Lilabai (PW-6) took Sangita to the Police Station, when the Police took Sangita to Bytco Hospital and got her admitted there.
18. It may be recalled that as regards the third dying declaration, there is no written record of the same. The evidence in that regard is of Lilabai (PW-6) only.
19. According to Lilabai (PW-6), on the day of incident, she and her family members were sleeping in her house after having dinner. That, at that time, this witness and her husband heard the noise of shouting coming from the direction of the house of Sangita and, therefore, they rushed there.
This witness and her husband saw Sangita in a burnt condition. That, at that time, all the accused persons were standing there. Lilabai (PW-6) asked Sangita as to what had happened, when Sangita stated that the Accused No. 4 Maruti had attempted to commit forcible sexual intercourse with her at ::: Downloaded on - 09/06/2013 17:59:04 ::: APEAL-1432-03 16 Dixit the place where villagers used to go for easing themselves and, that, at that time, Nirmala (Accused No.1) and Malanbai (Accused No.2) had come there and started beating her. According to Lilabai (PW-6), Sangita told her that Nirmala (Accused No.1) and Malanbai (Accused No.2) had pulled her, brought her to her house by beating her and, that, thereafter, Malanbai (Accused No.2) and Maruti (Accused No.4) had pushed her in the house.
That, Sangita, further told her that Nirmala (Accused No.1) and Malanbai (Accused No.2) had beaten her severely in the house and had attempted to kill her. Sangita then told Lilabai (PW-6) that Malanbai (Accused No.2) had poured kerosene on her person and, that, Nirmala (Accused No.1) had set her on fire; and, that Sakhubai (Accused No.3) and Maruti (Accused No.4) were standing there by keeping the door of the house closed. That, the Accused No.3 Sakhubai had instigated (others) to kill Sangita. That, one Kalabai had tried to rescue Sangita by covering her with a bed sheet. That, Sangita was then taken to the Police Station and from there to the hospital.
Lilabai (PW-6) has stated that on the next day, at about 1:30 p.m., Sangita died. Lilabai (PW-6) also said that she knew all the accused because they all used to reside in the same locality where Lilabai (PW-6) was residing.
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20. In the cross-examination, it was revealed that the locality, where the incident took place, is a thickly populated locality. That, from the house of the accused, the house of one Venu is situated at a distance of about 5 ft.
That, the house of one Shankar Pagare is situated on the eastern side of the house of the accused and the house of one Gokul is situated on the southern side of the house of the accused. Suggestions were given to this witness that there used to be frequent quarrels between Sangita and her husband Mahadu, but the witness denied the said suggestions. The suggestions that she was implicating the accused falsely and, that, actually, Sangita never told anything to this, were denied as false.
21. The trial Court has believed the dying declarations said to have been made by Sangita and convicted the accused persons solely on the basis of the said dying declarations. The trial Court itself has observed that the case of the prosecution rested solely on the dying declarations and, therefore, in our view, it is not necessary to discuss the other evidence that was adduced during the trial.
22. There was a conflict of judicial opinion with regard to the value of ::: Downloaded on - 09/06/2013 17:59:04 ::: APEAL-1432-03 18 Dixit dying declaration as a piece of evidence. The conflict in that regard was set at rest by the judgment of the Supreme Court of India in the case of Kushal Rao Vs. State of Bombay, reported in AIR 1958 SC 22. In that case, Their Lordships specifically dealt with the evidentiary value of dying declarations.
Their Lordships of the Supreme Court referred to a previous decision of the Supreme Court in the case of Ramnath Madhoprasad and others v. State of Madhya Pradesh, reported in AIR 1953 SC 420(E), wherein it was expressed that it was not safe to convict an accused merely on the evidence of dying declaration, without any corroboration. The following observations from Ramnath's case (supra) were reproduced by Their Lordships in the judgment in Khushal Rao's case (supra) :
"It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration. It is in this light that the different dying declarations made by the deceased and sought to be proved in the case have to be considered."::: Downloaded on - 09/06/2013 17:59:04 :::
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23. Their Lordships then mentioned the specific aspect which needed examination :
"We have, therefore, to examine the legal position whether it is settled law that a dying declaration by itself, can, in no circumstances, be the basis of a conviction."
24. After extensively examining the provisions of Sec.32(1) of the Evidence Act and referring to various conflicting views with regard to the value of dying declaration as a piece of evidence expressed by different High Courts, Their Lordships summarized the legal position as under:
"1) That it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated;
2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made;
3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence;
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4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence;
5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character; and
6) that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his ::: Downloaded on - 09/06/2013 17:59:04 ::: APEAL-1432-03 21 Dixit control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."
25. Their Lordships further observed that :
"Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But, once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration.
If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then without corroboration it cannot form the basis of a conviction. Thus, the ::: Downloaded on - 09/06/2013 17:59:04 ::: APEAL-1432-03 22 Dixit necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case."
26. Though the questions of evaluation of a dying declaration as a piece of evidence come up before the Supreme Court of India quite frequently and though a large number of decisions of the Supreme Court of India after the decision in the case of Khushal Rao (supra) are available, none of the later judgments seek to change or modify the law laid down in Khushal Rao's case. It is, therefore, now well settled that it is possible to base a conviction solely on a dying declaration. It is also well settled that a dying declaration cannot be said to be a weaker kind of evidence than other pieces of evidence and, that, it stands on the same footing as any other piece of evidence. It is also well settled that while judging whether the dying declaration in a given case is reliable and trustworthy, the same parameters, which are applied for judging the reliability and trustworthiness of any ::: Downloaded on - 09/06/2013 17:59:04 ::: APEAL-1432-03 23 Dixit other piece of evidence, must be applied.
27. We have carefully scrutinized all the dying declarations that have been given in evidence.
28. The record of the dying declaration (Exhibit-40) made by Sangita to the Special Judicial Magistrate Shri Sayyed (PW-8) shows that Sangita initially implicated only the Accused Nos.1 and 2 Nirmala and Malanbai.
She categorically stated that both of them poured kerosene over her body and, that, Nirmala (Accused No.1) set her on fire by a match stick and, that, then they, both, went away. She also, (after giving replies to the further questions put to her by the Special Judicial Magistrate Shri Sayyed (PW-8)), stated that she did not wish to say anything more. However, when the record of her statement was read over to her and after she had admitted the same to be truly and correctly recorded, she added that there were three ladies i.e. Malanbai (Accused No.2), Nirmala (Accused No.1) and Sakhubai (Accused No.3) and, that, the said three women had set her on fire. After recording this, she was asked as to against whom she had a complaint, when she said that she had complaint against the said three women and Maruti ::: Downloaded on - 09/06/2013 17:59:04 ::: APEAL-1432-03 24 Dixit (Accused No.4). It is easy to see that Sangita has improved her original version and then implicated first Sakhubai (Accused No.3) and then Maruti (Accused No.4). Even after the implication of Sakhubai (Accused No.3) and Maruti (Accused No.4), she has not stated as to what exactly they had done.
She has not given any role to Sakhubai (Accused No.3), and much less to Maruti (Accused No.4). In fact, she does not state that Maruti (Accused No.
4) had anything to do with the actual incident, of setting her on fire. Thus, it cannot be said that this dying declaration is free from infirmities.
29. The record of the dying declaration (Exhibit-58) made by Sangita to the Investigating Officer PI Rajendra Pagar (PW-12), as observed earlier, is a much detailed one. She has narrated the incident in great details. She has even given the age of the Accused No.4 Maruti. She has also stated as to how Nirmala (Accused No.1) and Malanbai (Accused No.2) dragged her to her own house and how Maruti (Accused No.4) also came along with them.
Sangita's version is that while she was held by Nirmala (Accused No.1), Malanbai (Accused No.2) went out and immediately came back with a plastic bottle containing kerosene. She also speaks that the neighbours assembled when she had raised shouts after catching fire and, that, all the ::: Downloaded on - 09/06/2013 17:59:04 ::: APEAL-1432-03 25 Dixit accused persons were present at that time and were telling the persons, who had assembled there, that Sangita herself had set her on fire. As per Sangita's version in this dying declaration, Nirmala (Accused No.1) and Malanbai (Accused No.2) told Lilabai (PW-6), who came there subsequently, that Sangita should be taken to hospital immediately and, that, Sangita was actually taken to Police Station by the said Lilabai (PW-6) and Nirmala (Accused No.1) and Malanbai (Accused No.2).
30. The version of Sangita in her oral dying declaration, allegedly made to Lilabai (PW-6), has to be ascertained from the evidence of Lilabai (PW-6).
According to Lilabai (PW-6), when she went to the house of Sangita on hearing the shouts, she noticed that Sangita was in a burnt condition and, that, when Lilabai (PW-6) asked her as to what had happened, Sangita told her that Maruti (Accused No.4) attempted to commit rape on her at the place where the villagers used to go for easing themselves and, that, when Maruti (Accused No.4) was forcibly trying to catch hold of Sangita's hand, Nirmala (Accused No.1) and Malanbai (Accused No.2) rushed there and started beating Sangita. That, they pulled her and dragged her to her house and pushed her in the house. Sangita also told Lilabai (PW-6) that Malanbai ::: Downloaded on - 09/06/2013 17:59:04 ::: APEAL-1432-03 26 Dixit (Accused No.2) had poured kerosene on her person and then Nirmala (Accused No.1) had set her on fire. She also told Lilabai (PW-6) that Sakhubai (Accused No.3) had given an instigation to kill Sangita and one Kalabai had tried to rescue Sangita by covering a bed sheet around her person.
31. Undoubtedly, all the dying declarations are consistent in so far as the implication of the accused persons is concerned. In our opinion, however, there are subtle but significant variations in the versions of Sangita.
32. The version in the dying declaration recorded by the Investigating Officer Rajendra Pagar (PW-12) is too detailed to believe the same to be an accurate and verbatim record of the version advanced by Sangita. It is not in dispute that Sangita had sustained 99% burn injuries. The statement was recorded only a few hours before her death. It is difficult to believe -
considering the extent of burn injuries sustained by Sangita - that she could make such a detailed and categorical statement, when previously she had failed to make any such statement before the Special Judicial Magistrate Shri Sayyed (PW-8). In this dying declaration, Sangita is supposed to have ::: Downloaded on - 09/06/2013 17:59:04 ::: APEAL-1432-03 27 Dixit said that on the previous night she had made a statement before the Executive Magistrate and, that, as she was frightened at that time, she had not given a detailed statement. It is difficult to accept that Sangita would be in such a fit condition - physically and mentally - so as to not only make a detailed statement, but also realize and understand that she was making an improvement over what was previously stated by her to the Executive Magistrate and that, therefore, there was a necessity to explain the improvement.
33. Though a dying declaration is admitted in evidence primarily on the ground of necessity, it has to be recognized that it is a violent exception to several fundamental rules of the law of evidence. It offends against the definition of 'Evidence', as given in Section 3 of the Evidence Act and is not a statement made by a witness as to the circumstances of death. It is a statement by a person who is dead and cannot be called as a witness and the Court is required to decide whether the facts (allegedly) stated by the deceased are true. The statement is neither made on oath, nor subjected to cross-examination. Strictly speaking, there is no legal obligation on the declarant to speak the truth. Though there is a factor viz. the unlikelihood of ::: Downloaded on - 09/06/2013 17:59:04 ::: APEAL-1432-03 28 Dixit a statement made by a person who is in expectation of death being false which the law treats as compensating for these weaknesses and, therefore, makes such statements admissible in evidence, the fact remains that the Court would be required to see whether the version appearing in the dying declaration is believable or acceptable. In doing so, the Court would apply the same parameters as it would apply to the evidence given by a witness. In other words, if the infirmities such as contradictions, or inconsistencies, or improvements in a version of the witness would make the Court doubt the truth of such version, then the same or similar infirmities in a dying declaration also should make the Court doubt the version contained in the dying declaration. It is not as if, when a witness would state a certain fact on oath before the Court, it may be disbelieved because of the inherent improbabilities in such version or the lack of corroboration when corroboration is felt necessary, or any other infirmities in such testimony;
but if the same defects are to appear in a dying declaration, the version therein should be still accepted as reliable, simply because the declarant is dead.
34. In this case, there are some aspects of the matter which render the ::: Downloaded on - 09/06/2013 17:59:04 ::: APEAL-1432-03 29 Dixit truth of the version projected in the dying declarations doubtful. First of all, the story in the dying declaration itself is not natural and probable.
35. If, when Maruti (Accused No.4) attempted to commit rape on Sangita and when Sangita had raised shouts, which resulted in attracting the attention of Nirmala (Accused No.1) and Malanbai (Accused No.2), who came there allegedly on hearing the shouts, such shouts were expected to draw the attention of the others in the locality also, to the incident.
However, it does not appear that the shouts raised by Sangita at that open place attracted the attention of anyone else except Nirmala (Accused No.1) and Malanbai (Accused No.2). This creates a doubt whether Sangita, indeed, had any occasion to shout at any open place, which gets strengthened by the omission of Sangita to state this incident in her dying declaration (Exhibit-40) recorded by Shri Sayyed (PW-8). It may be recalled that as per Sangita's version therein, the incident commenced by the arrival of Nirmala (Accused No.1) and Malanbai (Accused No.2) to Sangita's house.
36. That, Malanbai (Accused No.2) and Nirmala (Accused No.1) came there on hearing the shouts of Sangita is what is stated in the record of the ::: Downloaded on - 09/06/2013 17:59:04 ::: APEAL-1432-03 30 Dixit dying declaration (Exhibit-58) made by Sangita to the Investigating Officer Rajendra Pagar (PW-12). That, thereafter, Nirmala (Accused No.1) and Malanbai (Accused No.2) started beating Sangita by fists and kicks and they dragged Sangita to her house, but at that time also the neighbours or other persons in the locality are not said to have assembled. This is rather curious, when viewed in the light of the omission in that regard in dying declaration at Exhibit-40.
37. It is also difficult to believe that the belief of the Nirmala (Accused No.
1) and Malanbai (Accused No.2) about Sangita having illicit relations with Maruti (Accused No.4) - whether true or false - would provoke them to do away with Sangita. Though this by itself cannot be conclusive, it is certainly a factor which creates a doubt about what had actually happened.
38. The dying declaration (Exhibit-58) suggests that having dragged Sangita to her house, Accused No.2 Malanbai went out and returned with a plastic bottle containing kerosene. The evidence shows that kerosene was available in the house of Sangita also and, therefore, the story of Malanbai (Accused No.2) going out and returning with a bottle containing kerosene, ::: Downloaded on - 09/06/2013 17:59:04 ::: APEAL-1432-03 31 Dixit which, interestingly, is not found in the dying declaration (Exhibit-40) recorded by Special Judicial Magistrate Shri Sayyed (PW-8), raises a doubt about the correctness thereof.
39. There is a major difference in the dying declarations at Exhibit-40 and Exhibit-58 which is that the dying declaration at Exhibit-40 does not state that Sangita had gone out for easing herself and, that, at that time, the Maruti (Accused No.4) came there and tried to commit rape etc. Her version in this is that at about 9:00 p.m. to 9:30 p.m. Nirmala (Accused No.1) and Malanbai (Accused No.2) came to her house, when she was already in the house. It is further clear from the answer given by Sangita to the Question No.9, as put by the Special Judicial Magistrate Shri Sayyed (PW-8), which shows that Nirmala (Accused No.1) and Malanbai (Accused No.2) had forcibly entered in Sangita's house when Sangita was already in the house.
In our opinion, that the incident which allegedly took place outside the house and, that, Sangita was dragged from that place to the house by Nirmala (Accused No.1) and Malanbai (Accused No.2) which was supposed to be the cause behind what the accused persons allegedly did after dragging Sangita to her house, should be missing in the dying declaration ::: Downloaded on - 09/06/2013 17:59:04 ::: APEAL-1432-03 32 Dixit (Exhibit-40) is striking and significant.
40. There is also a variation in these dying declarations, in as much as, the dying declaration (Exhibit-40) says that after setting Sangita on fire, Nirmala (Accused No.1) and Malanbai (Accused No.2) left the place;
whereas in the dying declaration (Exhibit-58), it is mentioned that all the four accused were standing at that place itself.
41. That, the accused persons were standing there itself and, that, they themselves and Lilabai (PW-6) had taken Sangita to Police Station is indicated by the dying declaration (Exhibit-58) and the other evidence.
That, the accused, if they had, indeed, set Sangita on fire, would not try to escape or run away, would stand there itself till the witnesses would come is not consistent with the theory that they themselves had set Sangita on fire.
Significantly, according to Sangita's version itself, the accused were telling the persons, who had assembled there, that Sangita herself had set her on fire.
42. The dying declaration supposedly made by Sangita to Lilabai (PW-6) ::: Downloaded on - 09/06/2013 17:59:04 ::: APEAL-1432-03 33 Dixit was, admittedly, made in the presence of several others who had assembled there. If Sangita had, indeed, made such a statement, it would have been heard by the others who had assembled there. The Investigating Officer Rajendra Pagar (PW-12) has admitted that, in the course of investigation, he had recorded the statement of the persons in the locality who had assembled there at the time of the incident, but no such person was examined as a witness. Instead of examining only Lilabai (PW-6), it would have been desirable to examine an independent witness to establish the dying declaration. Failure to examine any such witness creates a doubt about the correctness of the version of Lilabai (PW-6) as regards the oral dying declaration made to her by Sangita.
43. In the dying declaration (Exhibit-40), Sangita has said that she had gone to the temple and had come back and, that, she was alone in the house at that time. In the dying declaration (Exhibit-58), however, she has stated that she was in her house with her two children. No attempt has been made by the Investigating Officer Rajendra Pagar (PW-12) to ascertain the correct position.
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44. Thus, (i) the variations between the dying declarations, (ii) the non examination of independent witnesses, who were supposed to have witnessed the dying declaration made by Sangita to Lilabai (PW-6) and (iii) the improvements made by Sangita while her dying declaration was being recorded by Shri Sayed (PW-8), when judged in the context of the inherent improbability of the prosecution version, create a reasonable doubt about what had actually happened. This is particularly so, because there is no evidence to corroborate the version in the dying declaration, which ought to have been available if things had, indeed, happened as per the prosecution version. The non-availability, or the failure to bring such evidence on record, as the case may be, strengthens the doubt in that regard.
45. For rejecting the dying declarations, it is not necessary to come to a positive conclusion that the so called dying declaration were either not made at all, or that even if made, they were not true. It is not necessary to come to a conclusion that the declarant was telling deliberate lies. There could be other reasons for the discrepancies which would occur in dying declarations and one such reason would be the physical and mental incapacity of the declarant to make a rational statement. In the instant case, ::: Downloaded on - 09/06/2013 17:59:04 ::: APEAL-1432-03 35 Dixit Sangita had sustained 99% burn injuries. Though the Medical Officers Dr. Bhaskar Gaikwad (PW-7) and Dr. Shilpa Kale (PW-11) have stated that Sangita was conscious and fit to make a statement, they had not ascertained the mental fitness of Sangita to make a rational statement. Even the Special Executive Magistrate Shri Sayyed (PW-8), who recorded the statement of Sangita, did not ask sufficient preliminary questions to Sangita to ascertain whether she was in a fit state of mind. All that he claims to have asked is what was the time, to which Sangita replied that it was night time. This answer by itself would not be sufficient to judge about the mental capacity and fitness to make a rational statement, particularly because it was coming from a person who had, admittedly, sustained 99% superficial to deep burn injuries.
46. On an independent re-appraisal of the evidence, we are of the opinion that it was unsafe to base the conviction of the accused persons solely on the dying declarations, the version in which was not uniform and when, apparently, there were gradual improvements in the versions. This is particularly so, because, apart from the various infirmities, as discussed earlier, the version of the prosecution itself is not natural and probable.
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47. In our opinion, this was a case where the Appellants/Accused were entitled to the benefit of the reasonable doubt which arises upon consideration of the evidence adduced by the prosecution. The conviction of the Appellants/Accused, as recorded by the trial Court, is neither proper, nor legal, in our opinion.
48. The Appeal is allowed.
49. The impugned Judgment of conviction and sentences imposed upon the Appellants/Accused are set aside. The Appellants/Accused stand acquitted. Their bail bonds are discharged.
50. Fine, if paid, be refunded to the Appellants/Accused respectively.
(A. M. THIPSAY, J.) (V. M. KANADE, J.)
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