IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 270 OF 2006
Vijaysing Gulabsing Devre,
age : 25 years, Occup.: Labour,
R/o Maharana Pratap Housing Society,
Chalisgaon, Taluka Chalisgaon,
District Jalgaon PETITIONER
(Accused No.1)
VERSUS
The State of Maharashtra,
Through Public Prosecutor RESPONDENT
(Prosecution)
----
Mr. Vijay Sharma, Advocate for the appellant
Mrs. A.V. Gondhalekar, Addl. Public Prosecutor for the
respondents/State
----
CORAM : SUNIL P. DESHMUKH AND
SANGITRAO S. PATIL, JJ.
DATE : 7th DECEMBER, 2017
JUDGMENT (PER : SANGITRAO S. PATIL, J.):
The appellant has challenged his conviction and sentence for the offences punishable under Sections 498-A and 302 of the Indian Penal Code ("IPC", for short), recorded by the learned 1 st Adhoc Additional Sessions Judge, Jalgaon, in Sessions Case No.172 of 2004 on 22.03.2006.
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2 criapl270-2006
2. The deceased - Ashabai and the appellant got married prior to about six years of the incident, which took place on 17.06.2004. The deceased - Ashabai has begotten two daughters from this wedlock. The original accused No.2 is the brother, accused No.3 is the brother-in-law (husband of the sister), accused No.4 is the mother, while accused No.5 is the sister of the appellant (accused No.1).
3. It is the case of the prosecution that the appellant and original accused Nos.2 to 5 subjected the deceased - Ashabai to cruelty with a view to compel her to bring cash amount from her maternal home for purchasing agricultural land and motor vehicle. When the deceased - Ashabai was preparing food inside her matrimonial home on 17.06.2004 at about 10.00 a.m., quarrel took place between the appellant and the deceased - Ashabai. The appellant was asking her to bring Rs.6000/- from her maternal home for being paid to his landlord. He started hurling abuses against her and also threatening her. The deceased - Ashabai expressed inability to bring cash amount from her brother on the say that her father was no more and her brother was ::: Uploaded on - 19/12/2017 ::: Downloaded on - 19/12/2017 23:58:42 ::: 3 criapl270-2006 anyhow maintaining his family. The appellant then started beating her. He expressed that her being alive would of no use and therefore, he would kill her. He picked up kerosene can that was near the burning stove and poured kerosene therefrom on her person. He pushed her on burning stove. He, further ignited a match stick and set fire to her Saari, due to which her clothes started burning causing her burn injuries. The appellant then ran away from the house. The deceased - Ashabai also followed him and raised shouts. The neighbours came and extinguished fire. Thereafter, the appellant also sprinkled water on her person and took her to the Municipal Hospital from where she was referred to the private hospital of Dr. Devre.
4. After receiving intimation from the hospital of Dr. Devre, PSI Ahir recorded the statement of the deceased - Ashabai somewhere between 11.20 a.m. and 12.15 p.m. on 18.06.2004. The said statement was treated as the First Information Report (for short, "FIR"). On the basis of the FIR, Crime No.141 of 2014 came to be registered against the appellant and accused Nos.2 to 5 for the offences punishable under Sections 307, 498-A, ::: Uploaded on - 19/12/2017 ::: Downloaded on - 19/12/2017 23:58:42 ::: 4 criapl270-2006 504, 506 read with Section 34 of the IPC.
5. The investigation followed. Spot panchanama was prepared. The kerosene stove, a plastic can smelling of kerosene, the match stick box and burnt pieces of Saari of the deceased - Ashabai came to be seized under the same panchanama. Statements of the witnesses were recorded. The deceased - Ashabai was referred to Civil Hospital at Jalgaon from the hospital of Dr. Devre on 21.06.2004. She died there on 25.06.2004. The inquest panchanama of the body of the deceased was prepared and the dead body was referred to the Medical Officer for postmortem. There were 87% burns on the body of the deceased - Ashabai. The Medical Officer opined that she died of septic shock due to burn injuries. Therefore, the offence punishable under Sections 302 came to be substituted for the offence punishable under Section 307 of the IPC. After completion of the investigation, the appellant and accused Nos.2 to 5 came to be chargesheeted for the offences punishable under Sections 302, 498-A, 504, 506 read with Section 34 of the IPC, in the Court of the Judicial Magistrate, First Class at Chalisgaon.
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6. The offence punishable under Section 302 of the IPC being exclusively triable by the Court of Session, the learned Judicial Magistrate, First Class committed it to the Additional Sessions Court at Jalgaon for trial. The learned Trial Judge framed charges against the appellant and accused Nos.2 to 5 for the offences punishable under Sections 498-A read with Section 109 and under Section 302 read with Section 34 of the Indian Penal Code, vide Exh.12 and explained the contents thereof to them in vernacular. The appellant and accused Nos. 2 to 5 pleaded not guilty and claimed to be tried. Their defence is that of total denial and false implication. According to them, the deceased Ashabai sustained burns accidentally, as a result of which she died.
7. The prosecution examined five witnesses to establish the guilt of the appellant and accused Nos.2 to 5 for the above-mentioned offences. The learned Trial Judge evaluated the said evidence and found that there was sufficient and dependable evidence to hold the appellant only guilty for the offences punishable under ::: Uploaded on - 19/12/2017 ::: Downloaded on - 19/12/2017 23:58:42 ::: 6 criapl270-2006 Sections 498-A and 302 of the IPC. He, therefore, convicted the appellant for the said offences and sentenced him to suffer rigorous imprisonment for two years and pay a fine of Rs.1000/- in respect of the offence punishable under Section 498-A of the IPC and to suffer imprisonment for life and pay a fine of Rs.1000/- in respect of the offence punishable under Section 302 of the IPC. The learned Trial Judge did not find sufficient evidence to connect accused Nos.2 to 5 with the above-mentioned offences. He, therefore, acquitted accused nos.2 to 5. The judgment of acquittal of accused Nos.2 to 5 has not been challenged by the prosecution and as such, attained finality.
8. The learned counsel for the appellant submits that the deceased - Ashabai sustained burns accidentally when she was preparing food. After hearing her shouts, the appellant and his friend Chhotu, who were sitting out of the house, extinguished fire from her person and took her to the hospital of Dr. Devre for treatment. After receiving intimation from the hospital of Dr. Devre, an Assistant Sub-Inspector (ASI), of Police Station Chalisgaon, recorded the statement of the ::: Uploaded on - 19/12/2017 ::: Downloaded on - 19/12/2017 23:58:42 ::: 7 criapl270-2006 deceased Ashabai on 17.06.2004 at about 3.00 p.m. The Executive Magistrate also recorded her statement on the same day at about 3.20 p.m., after getting it verified from Dr. Devre that she was in a fit condition to give statement. In both of these statements the deceased - Ashabai consistently stated that when she was preparing food, her Saari was caught by fire accidentally due to which she sustained burn injuries and that the appellant extinguished fire from her person and took her to the hospital of Dr. Devre for treatment. However, the prosecution had suppressed both of these dying declarations. He then submits that the brother of the deceased Ashabai attended the hospital on the day of the incident at about 1.00 p.m. He tutored and influenced Ashabai to falsely involve the appellant and accused Nos.2 to 5 in the incident and therefore, the third dying declaration came to be recorded at the instance of the brother of the deceased - Ashabai. He submits that the third dying declaration allegedly recorded on 18.06.2004 is not at all voluntary and truthful. However, the learned Trial Judge wrongly believed that dying declaration and wrongly convicted the appellant. He submits that since there are inconsistent statements ::: Uploaded on - 19/12/2017 ::: Downloaded on - 19/12/2017 23:58:42 ::: 8 criapl270-2006 made by the deceased - Ashabai, the earlier two dying declarations which are voluntary and depicting the factual position, ought to have been relied on by the learned Trial Judge. He submits that the evidence on record is not at all sufficient and believable to hold the appellant guilty for the above-mentioned offences.
9. On the other hand, the learned A.P.P. submits that the earlier two dying declarations were given by the deceased - Ashabai under the pressure of the appellant. Nobody was in the hospital from the side of her maternal home to encourage her to state factual position. However, subsequently, she gathered courage to state the factual position. Accordingly, she gave the third dying declaration involving the appellant in the incident in question. It was truthful and voluntary. It inspires great confidence. This dying declaration gets corroboration from the evidence of the brother of the deceased - Ashabai. According to the learned A.P.P., the theory of accidental burning, setup by the appellant, is not natural, proper and believable. The prosecution established guilt of the appellant for the above- mentioned offences beyond reasonable doubt. The learned ::: Uploaded on - 19/12/2017 ::: Downloaded on - 19/12/2017 23:58:42 ::: 9 criapl270-2006 A.P.P. therefore supports the impugned judgment and order.
10. It has come in the evidence of Dr. Devre (PW1) (Exh.43) that the deceased - Ashabai was admitted in his hospital by the appellant on 17.06.2004 at about 12.14 p.m. She had sustained 82% burn injuries. It has come in his cross-examination that he had informed about the admission of Ashabai in his hospital to the police station on 17.06.2004. One ASI, of Police Station, Chalisgaon came to his hospital on that day at about 3.00 p.m. and asked whether Ashabai was in a fit condition to give statement. After he opined that she was in a fit mental condition to give statement, the said ASI recorded her statement (Exh.47). His endorsement shows fitness of the deceased - Ashabai to give statement. He states that the said ASI recorded the statement (Exh.47) of the deceased - Ashabai. It has further come in his cross-examination that on the same day, the Executive Magistrate of Chalisgaon also recorded the statement (Exh.49) of the deceased - Ashabai at about 3.20 p.m. It also bears his endorsement about fitness of Ashabai to give statement. He deposes ::: Uploaded on - 19/12/2017 ::: Downloaded on - 19/12/2017 23:58:42 ::: 10 criapl270-2006 that the deceased - Ashabai put her thumb impressions on the statements at Exhs. 47 and 49.
11. PSI Ahir (PW5) (Exh.71), who conducted the investigation, states that an ASI of Police Station, Chalisgaon, recorded dying declaration (Exh.47) and Executive Magistrate recorded dying declaration (Exh.49) of the deceased - Ashabai. However, the prosecution has not examined both of these witnesses. The execution of the dying declarations Exhs.47 and 49 has been proved by Dr. Devre (PW1) before whom they were recorded and the deceased - Ashabai put her thumb impressions thereon. The appellant admitted the contents of the said dying declarations.
12. In the dying declarations (Exh. 47 and 49), the deceased - Ashabai specifically stated that on 17.06.2004 at about 10.00 a.m., she ignited kerosene stove for preparing food when she was leaning while sitting down, a part of her Saari (called padar) accidentally fell down on the flames of the burning stove, due to which she was caught by fire. She raised shouts. The appellant was sitting outside the house ::: Uploaded on - 19/12/2017 ::: Downloaded on - 19/12/2017 23:58:42 ::: 11 criapl270-2006 alongwith one Chhotu. Both of them came towards her immediately, extinguished fire from her person and admitted her in the hospital of Dr. Devre for treatment. She specifically stated that she neither set herself on fire nor anybody set her on fire. From the dying declarations (Exh.47 and 49), it is clear that the deceased - Ashabai sustained burns accidentally.
13. Dr. Devre (PW1) deposes that on 17.06.2004 at about 9.00 p.m., the deceased - Ashabai expressed her desire to again give statement in respect of the incident. Therefore, he informed the police vide letter (Exh.46) at about 9.20 p.m. From the endorsement made on the letter (Exh.46), it is clear that it was received in the Police Station at about 9.45 p.m. on 17.06.2004. PSI Ahir (PW5) states that after receiving letter (Exh.46), he had deliberations with his higher authority on 18.06.2004 at 11.45 a.m. Thereafter, he visited Dr. Devre's hospital. He requested Dr.Devre (PW1) to opine as to whether Ashabai was in a fit mental condition to give statement. Accordingly, Dr. Devre examined her and opined that her statement could be recorded. Thereafter, he recorded the statement (Exh.45) of the deceased - ::: Uploaded on - 19/12/2017 ::: Downloaded on - 19/12/2017 23:58:42 :::
12 criapl270-2006 Ashabai as per her say in the presence of Dr. Devre (PW1) and one of the members of Mahila Dakshata Committee. He read over the contents of the said statement to the deceased - Ashabai which she admitted to be correct and thereafter, he obtained her thumb impression thereon. The Member of Mahila Dakshata Committee and himself put their signatures thereon. Dr. Devre (PW1) corroborates the version of PSI Ahir (PW5) and states that PSI Ahir (PW5) recorded dying declaration (Exh.47) of the deceased - Ashabai, when she was in a fit condition to give statement.
14. In the dying declaration (Exh.45) the deceased
- Ashabai states as under:- "
"nsojs gkWLihVy pkGhlxkao [email protected]@2004 tckc % lkS- vk'kkckbZ fot;kflax ikVhy o; 22 /kank & ?kjdke jk- egkjk.kk gkSlhax lkslk- IykWV ua-106 pkGhlxkao-
le{k fopkjys o:u iwUgk fygqu nsrs dh ek>k ;kiwohZ dky [email protected]@04 jksth iksyhlkadMsl fnysyk tckc tGkys ckcrpk ek>k uojk le{k gtj vlY;kus o ek>s ekgsjps dks.khgh gtj ulY;kus eh tckckr lkaxhrysyh gdhxr uo&;kps nckck[kkyh lkaxhryh gksrh rh eyk ekU; ulqu eh vkrk lnj /kDD;krqu FkksMh lkojY;kus eyk lR; ijhLFkhrh lkaxko;kph vkgs rh [kkyhy izek.ks-::: Uploaded on - 19/12/2017 ::: Downloaded on - 19/12/2017 23:58:42 :::
13 criapl270-2006 ojhy fBdk.kh eh irh fot;flax ikVhy o nksu eqyhalg jkgrs- lnj fBdk.kh vkEgh 1 o"kkZiklqu HkkM;kus jkgkrks uojk vkeph ekjksrh dkj u- MH-20 U 6726 gh izoklh HkkM;koj pkyforks o R;koj vkEgh mnjfuokZg djrks-
dky [email protected]@04 jkth ldkGh 10-00 ok- ps lq-kk ?kjkr Loa;ikd djhr vlrkauk irh fot;flax xqykc ns;js ¼ikVhy½ ;kaps'kh HkkaM.k >kys rsOgk HkkaM.kkr irh eyk Eg.kkys dh ?kjekydkps lgk gtkj :i;s ns.ks vkgs rs rq>s vkbZ ofMykadMwu ekxqu ?ks- vls Eg.kqu eyk f'kohxkG o nenkVh d: ykxys- R;koj eh R;kauk lkaxhrys dh rqeph vkbZ vk.kh cfg.k gs usgeh ek>s vkbZ ofMykadMwu iS'kkph ekx.kh djrk gs cjkscj ukgh- ,d rj eyk ofMy ukgh- ek>k Hkkm R;kaps dqVwac dls rjh pkyorks- vkrk isj.khpk VkbZe vkgs dqBwu iSls vk.ksy- vls EgVY;koj irhus eyk f'kohxkG d:u ekjgk.k d: ykxyk o rq vkrk txqu mi;ksx ukgh rqyk ek:u Vkdrks vls Eg.kqu R;kus LVksOg toG vlysyk jkWdsypk Hkjysyk IyWLVhdph dWu mpyqu ek>s vaxkoj vksryk o pkyq LVksOgoj <dywu fnys- rlsp LVksOg toG iMysyh ekphl isVhrhy dkMh vks<wu ek>s lkMhyk ykoyh- R;keqGs ek>s vaxkojhy diM;kauh isV ?ksrY;kus eh tGkyh vlqu R;kr ek>s nksUgh gkr] nksUgh ik; Nkrh iksV o xqIr vax tGkys vkgs- rlsp eyk irhus isVfoys uarj irh ?kjkrwu ckgsj iGkys- eh R;kaps ekxs iGkyh o tksj&tksjkus vkjksG;k ekjY;k- R;keqGs xYyhrhy leksj jkg.kkjs czkEg.k o R;kaps ?kjkrhy brj yksd ?kjkckgsj vkys o R;kauh eyk fo>foys- uarj irhus ek>s vaxkoj ik.kh Vkdys gksrs- eh tGkY;kus eyk ek>s irhus vkS"k/k mipkjklkBh u-ik-nok[kkuk 40xko ;sFks vk.kys oj rsFkhy MkWDVjkauh ykxyhp MkW-nsojs ;kaps gkWLihVy e/;s VªkWULQj dsys vkgs-
;kiwohZ ek>k irh lklq fla/kqckbZ xqykc nsojs u.kan lkS- eaxykckbZ lqesjflax uanksbZ lqesjflax f=flax ikVhy o tsB egsanzflax xqykc nsojs gs Ik.k osGksosGh Hkkm o vkbZ ;kapsdMwu 'ksrh o xkMh lkBh iSls vk.kkos Eg.qku eyk ::: Uploaded on - 19/12/2017 ::: Downloaded on - 19/12/2017 23:58:42 ::: 14 criapl270-2006 ekjBksd djhr gksrs Eg.kqu ek>h ojhy yksdkaps fo:/n fQ;kZn vkgs-
ek>h ojhy fQ;kZn eyk okpqu nk[kfoyh rh ek>s lkax.ks izek.ks cjkscj fyfgyh vkgs-
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15. The contents of dying declaration (Exh.45) show that on 17.06.2004 at about 10.00 a.m., when Ashabai was preparing food, the appellant picked up quarrel with her and asked her to bring Rs.6000/- from her maternal home for being paid to his landlord. When she expressed inability to bring the amount from her brother, the appellant said that her being alive was of no use and that he would kill her. Thereafter, he poured kerosene on her person and pushed her on burning stove. He further ignited a match stick and set her Saari on fire due to which she sustained burns on various parts of her body. He ran away from the house. The neighbours extinguished fire from her person. Then the appellant also sprinkled water on her person and took her initially to the Municipal Hospital for treatment and then to the hospital of Dr. Devre. As such, the deceased ::: Uploaded on - 19/12/2017 ::: Downloaded on - 19/12/2017 23:58:42 ::: 15 criapl270-2006 Ashabai blamed the appellant for setting her ablaze.
16. PSI Ahir (PW5), who recorded dying declaration (Exh.45) admits in his cross-examination that he was aware that the dying declaration (Exh.45) was not the first statement that was given by the deceased - Ashabai. He denies that the deceased - Ashabai told him that prior to recording of her dying declaration (Exh.45), two authorities had recorded her statements. However, the first paragraph of dying declaration (Exh.45) makes it clear that she had specifically stated that her statement was recorded by the police on 17.06.2004. When it is the case of the PSI Ahir (PW5) that the said fact was not stated by the deceased - Ashabai before him, a strong doubt gets created about the authorship of the statement of the deceased - Ashabai. The first paragraph seems to have been incorporated in the dying declaration (Exh.45) at the instance of somebody else than the deceased - Ashabai.
17. Zumbarsing (PW7) (Exh.57) is the brother of the deceased - Ashabai. He states that on the day of the incident at about 10.00 a.m., he came to know from his ::: Uploaded on - 19/12/2017 ::: Downloaded on - 19/12/2017 23:58:42 ::: 16 criapl270-2006 younger brother Mahendrasing that he received telephonic message from Munna Patil that the deceased Ashabai sustained burns and was admitted in Devre hospital at Chalisgaon. He went to Devre hospital at Chalisgaon alongwith his relatives at about 12.35 p.m. to 1.00 p.m. He met her in Intensive Care Unit (ICU). On being enquired by him, she told that on that day in the morning quarrel took place between the appellant and herself on the ground of demand of money for discharging the debts incurred for purchasing of vehicle. She was preparing food on kerosene stove. The appellant came there and poured kerosene on her person and pushed her on the burning stove, due to which she was caught by fire. He further states that the appellant set her ablaze by means of burning match stick.
18. The prosecution has relied on the evidence of Zumbarsing (PW2) to prove the above mentioned oral dying declaration of the deceased - Ashabai. He states that he was present in Devre hospital, after reaching there on 17.06.2004 at about 1.00 p.m. till she was discharged from that hospital and admitted in the civil hospital at Jalgaon on 21.06.2004. He states in paragraph No.6 of ::: Uploaded on - 19/12/2017 ::: Downloaded on - 19/12/2017 23:58:42 ::: 17 criapl270-2006 the cross-examination that in response to the intimation given to the police from Dr. Devre's hospital, police reached that hospital on 17.06.2004 at about 3.00 p.m. However, he shows ignorance as to whether the police and Executive Magistrate recorded the statements of the deceased - Ashabai on that day on 3.00 p.m. and 3.20 p.m. respectively. The evidence of Dr.Devre (PW1) clearly shows that the dying declarations Exh.47 and 49 were recorded by an ASI and the Executive Magistrate on 17.06.2004 at about 3.00 p.m. and 3.20 p.m. respectively, in his hospital. It is, thus, clear that Zumbarsing (PW2) tried to feign ignorance about the fact of recording dying declarations (Exh.47 and 49) by police personnel and the Executive Magistrate, since they were disclosing that the deceased - Ashabai sustained burns accidentally.
19. The evidence of Zumbarsing (PW2) that the deceased Ashabai gave oral dying declaration before him as stated above, itself does not inspire confidence. If the deceased - Ashabai had given such oral dying declaration before him at about 1.00 p.m. on that day, Zumbarsing (PW2) certainly would have complained against ::: Uploaded on - 19/12/2017 ::: Downloaded on - 19/12/2017 23:58:42 ::: 18 criapl270-2006 the appellant to the Police Station or at-least before the police personnel who visited the hospital at about 3.00 p.m. He did not whisper about the oral dying declaration until his statement was recorded by police. He states that his statement was recorded by the police about 15 days of the day of incident. He specifically states that he did not make any complaint until his statement was recorded by the police. However, he adds that on the day of incident, he had gone to the Police Station, Chalisgaon and lodged the report but police told that the deceased - Ashabai had already given statement. The version of this witness about having approached the Police Station to lodge report against appellant, has not at all been corroborated. It seems that after he came to know that the deceased - Ashabai stated before the police personnel as well as before the Executive Magistrate that she sustained burns accidentally, he tried to influence the deceased - Ashabai by insisting upon her to involve the appellant, his family members and other relations in the incident in question. It seems that he succeeded in implicating the appellant and accused Nos.2 to 5 at about 9.00 p.m. and therefore, the deceased - Ashabai seems to have ::: Uploaded on - 19/12/2017 ::: Downloaded on - 19/12/2017 23:58:42 ::: 19 criapl270-2006 expressed that she wanted to give one more statement and accordingly, her statement i.e. dying declaration (Exh.45) came to be recorded by PSI Ahir (PW5) on 18.06.2004 around 12.00 noon.
20. It is well settled that when there are multiple dying declarations or inconsistent dying declarations, each dying declaration has to be considered independently with respect to the facts of the case and the other attending circumstances. In this regard a reference may conveniently be made to paragraphs 13 and 14 of the judgment in the case of Raju Devade Vs. State of Maharashtra AIR 2016 SC 3209, in which it has been held as follows:
"13. When there are multiple dying declarations, each dying declaration has to be considered independently on its own merits so as to appreciate its evidentiary value and one cannot be rejected because of the contents of the other. In the cases where there are more than one dying declarations, it is the duty of the Court to consider each one of them in its correct perspective and satisfy itself that which one of them reflects the true state of affairs.::: Uploaded on - 19/12/2017 ::: Downloaded on - 19/12/2017 23:58:42 :::
20 criapl270-2006
14. In the case of Shudhakar Vs. State of M.P. AIR 2012 SC 3265, it is observed that in the cases involving multiple dying declarations, for determining which of the various dying declarations should be believed by the Court, the test of common prudence would be to first examine which of the dying declarations is corroborated by other prosecution evidence. Further, the attendant circumstances, the condition of the deceased at the relevant time, the medical evidence, the voluntariness and genuineness of the statement made by the deceased, physical and mental fitness of the deceased and possibility of the deceased being tutored are some of the factors which would guide the exercise of judicial discretion by the Court in such matters."
21. In view of the above cited judgment of the Hon'ble Apex Court, the judgment in the case of Shri Rajendra Madhukar Kadam Vs. The State of Maharashtra, 2016 ALL MR (Cri) 1022; Govind Narain and another Vs. State of Rajasthan, AIR 1993 SC 2457 and Sunder Gounder Vs. State of Goa, 2015 ALL MR (Cri) 698, cited by the learned counsel for the appellant, wherein it has been observed that where there are multiple dying ::: Uploaded on - 19/12/2017 ::: Downloaded on - 19/12/2017 23:58:42 ::: 21 criapl270-2006 declarations and acceptance of one dying declaration falsifies the other, the dying declarations have to be necessarily rejected, would not be helpful to the appellant to seek rejection of all the dying declarations of the deceased - Ashabai referred to above.
22. In view of the above-mentioned legal position in respect of multiple dying declarations, it will have to be considered with respect to the evidence on record as to whether dying declaration (Exh.45) is believable. In the opening paragraph of dying declaration (Exh.45), the deceased Ashabai is stated to have mentioned that when her dying declaration was recorded on 17.06.2004 by the police, the appellant was present there and none from her maternal home was present. Therefore, she stated before the police under the pressure of the appellant. As stated above, PSI Ahir (PW5) himself states that the said statement was not made before him and that her statement was recorded previously by two authorities. From the evidence of Zumbarsing (PW2), it is clear that he was present in Dr.Devre hospital right from 1.00 p.m. on 17.06.2004 till 21.06.2004, when the ::: Uploaded on - 19/12/2017 ::: Downloaded on - 19/12/2017 23:58:42 ::: 22 criapl270-2006 deceased Ashabai was shifted to the Civil Hospital at Jalgaon from Dr. Devre's hospital. Thus, the contents of this paragraph that nobody from her maternal home was present in the hospital cannot be believed. From the evidence of Dr. Devre (PW1), it is clear that the appellant was not present when the dying declarations (Exh.45 and 49) were recorded by the police and the Executive Magistrate. If that be so, the dying declarations (Exh.45 and 49) cannot be said to have been given by the deceased Ashabai under the pressure of the appellant.
23. In the dying declaration (Exh.45), the deceased
- Ashabai stated to have alleged that the appellant was asking her to bring Rs.6000/- from her maternal home for being paid to his landlord. However, Zumbarsing (PW2) states that the deceased Ashabai told him that on the day of the incident, in the morning, quarrel took place between the appellant and herself on account of demand of money to satisfy the debt of purchase of vehicle. Thus the reasons for demanding money stated in the dying declaration (Exh.45) and the alleged oral dying declaration given before Zumbarsing (PW2), are not ::: Uploaded on - 19/12/2017 ::: Downloaded on - 19/12/2017 23:58:42 ::: 23 criapl270-2006 consistent. As such, the evidence of Zumbarsing (PW2) does not corroborate the contents of the dying declaration (Exh.45) in respect of the reason for demand of money which was the very cause of the alleged quarrel between the appellant and the deceased Ashabai.
24. The contents of the dying declaration (Exh.45) that the appellant pushed the deceased Ashabai on a burning stove and again set her ablaze by igniting a matchstick, suffer from inherent improbability. If a person is pushed on a burning stove after pouring kerosene, he immediately would be caught by fire. Thereafter, it would not be natural and probable on the part of the person setting the victim on fire to again to pick-up matchstick and ignite it to set the victim on fire.
25. The dying declaration (Exh.45) shows that the neighbours came and extinguished fire from her person and the appellant had sprinkled water on her person. However, none of the said neighbours has been examined by the prosecution. The evidence of the neighbours certainly would have made the position clear as to what ::: Uploaded on - 19/12/2017 ::: Downloaded on - 19/12/2017 23:58:42 ::: 24 criapl270-2006 was the reaction of the deceased Ashabai and that of the appellant after she was caught by fire. The prosecution suppressed the evidence of these material witnesses, which creates strong doubt of truthfulness of the contents of the dying declaration (Exh.45).
26. There is a specific mention in the dying declaration (Exh.45) that the appellant also poured water on the person of the deceased Ashabai and admitted her initially in the Municipal Hospital and then in the hospital of Dr. Devre for treatment. Dr. Devre (PW1) also states that the appellant admitted the deceased Ashabai in his hospital. Had the appellant set the deceased - Ashabai on fire and wanted to kill her, he would not have tried to extinguish fire by pouring water on her person and further would not have taken her to any hospital for treatment.
27. It has come in the evidence of Zumbarsing (PW2) that the deceased - Ashabai had been to his house for the second delivery and that she stayed there for 30 to 35 days. He states that the appellant had been to his house to take the deceased Ashabai to his house, when ::: Uploaded on - 19/12/2017 ::: Downloaded on - 19/12/2017 23:58:42 ::: 25 criapl270-2006 her newly born daughter was 15 days old. He further states that the incident took place about 3 days thereafter. Thus prior to about 3 days of the incident, the deceased Ashabai and the appellant were at his house. There is no mention in his evidence to show that during the said visit, the appellant asked for money from him on any count either personally or through the deceased Ashabai. He does not state that the deceased - Ashabai was reluctant to go with the appellant on any count.
28. Zumbarsing (PW2) states that the deceased - Ashabai stated him that the accused persons (appellant and accused Nos.2 to 5) used to demand money, as they were indebted due to purchase of vehicle and on that count, she was being subjected to cruelty. However, it has come in the evidence of PSI Ahir (PW5) that Zumbarsing (PW2) has not stated the said fact before him when his statement was recorded. As such, this is the material omission in the version of Zumbarsing (PW2). It is, thus, clear that he has tried to add something more for the first time before the Court, which is not even stated before the police.
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26 criapl270-2006
29. There is absolutely no evidence on record to show that the appellant ever ill-treated on any particular occasion, the deceased - Ashabai on any count. As such, the contents of dying declaration (Exh.45) do not find corroboration. Moreover, for the reasons mentioned above, dying declaration (Exh.45) seems to have been recorded at the instance of Zumbarsing (PW2) with a view to involve the appellant and his other relatives, i.e. accused Nos.2 to 5, by way of an afterthought.
30. The evidence on record shows that the appellant himself tried to extinguish fire from the person of the deceased - Ashabai. He himself took her to the hospital for treatment. There was no reason for him to set the deceased Ashabai on fire. In the circumstances, dying declarations (Exh.47 and 49) cannot be said to have been recorded at the instance of the appellant or under his pressure. The dying declarations (Exh.47 and 49) seem to be voluntary and truthful. The dying declaration (Exh.45) does not inspire confidence for the reasons mentioned above. The dying declarations (Exh.47 and 49) ::: Uploaded on - 19/12/2017 ::: Downloaded on - 19/12/2017 23:58:42 ::: 27 criapl270-2006 show that the decased-Ashahabi sustained burns accidentally.
31. In view of the above facts and circumstances of the case, it cannot be said that the prosecution established that the appellant subjected the deceased - Ashabai to cruelty and ultimately committed her murder by setting her on fire. The learned Trial Judge did not appreciate the evidence on record correctly, properly and wrongly convicted the appellant relying on the dying declaration (Exh.45) and the evidence of Zumbarsingh (PW2), which, in fact, does not inspire confidence. The impugned judgment and order convicting and sentencing the appellant, are not sustainable. They are liable to be quashed and set aside. In the result, we pass the following order:-
O R D E R (1) The appeal is allowed.
(2) The impugned judgment and order are quashed and set aside.
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28 criapl270-2006 (3) The appellant is acquitted of the offences
punishable under Sections 498-A and 302 of the Indian Penal Code.
(4) The bail bonds of the appellant are cancelled.
He is set at liberty.
(5) Fine amount, if deposited by the appellant, be refunded to him.
(6) Appeal is accordingly disposed of.
Sd/- Sd/-
[SANGITRAO S. PATIL] [SUNIL P. DESHMUKH]
JUDGE JUDGE
sam/criapl270-2006
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