Dinesh Gopal Bhure vs The State Of Maharashtra
2003 Latest Caselaw 228 Bom

JUDGMENT

Palshikar, J.

1. Being aggrieved by the judgment dated 11.7.1997 passed by the III Additional Sessions Judge, Thane in Sessions Case No. 560 of 1996 convicting the appellant-accused under Section 302 of Indian Penal Code to suffer life imprisonment this appeal is filed on the grounds as mentioned in the memo of appeal as also verbally canvassed by the learned counsel appearing on behalf of the appellant-accused.

2. The story of the prosecution stated briefly is that:

On 23.1.1996 the police received information that there was case of burns in the locality. Therefore, the police under intimation to the Mahila Dakshata Samiti, Vartaknagar went to the site, found body of the victim in burnt condition, took the body to the hospital. The Mahila Dakshata Samiti representative accompanied them to the hospital and looking to the condition of the deceased the police inspector without waiting for Magistrate to come and record the dying declaration, himself recorded the declaration after recording of which the victim succumbed to injuries and died. On the basis of the statement made in the dying declaration accused who is the husband of the victim was arrested and prosecuted. The prosecution has examined nine witnesses to prove its case of murder by burning against the accused. The accused also led evidence of two witnesses and examined himself in support and denied the charges.

3. With the assistance of the learned counsel for the appellant and the learned Public Prosecutor we have scrutinized the evidence on record and reappreciated the evidence. It was contended on behalf of the appellant that the dying declaration could not be accepted; in the case as it does not inspire confidence and is not made in accordance with principles of law which by now are settled. Learned counsel placed heavy reliance on the latest judgment of the Supreme Court delivered the Constitutional Bench of the Supreme Court in the case of Laxman v. State of Maharashtra, 2002 All MR (Cri.) 2259 (S.C.) and claimed that none of the ingredients necessary for accepting the dying declaration as the only proof of guilt are not present in the instant case and therefore it is liable to be rejected. He also took us through the evidence on record and pointed out several infirmities which according to him disproved the dying declaration or made it unreliable. He therefore claimed for acquittal of the accused. The learned Public Prosecutor however supported the judgment of conviction on the ground that it is permissible in law to have a dying declaration recorded by police officer and relying on judgment of the Supreme Court contended that where it is not possible to wait for a Magistrate to come and record the dying declaration the recording of which by police officer in certain cases may be acceptable. The contention of the learned Public Prosecutor relying on the decision of the Supreme Court reported in the case of Laxmi (Smt.) v. Om Prakash and Ors., is that the Supreme Court has observed that though practice of police officer recording a dying declaration is not approvable, has however further observed that normally the statement must be recorded by the Magistrate excepting cases where deceased is not in such precarious condition that the police officer himself has to record the statement and therefore according to the Public Prosecutor there is no reason to discard this dying declaration and recording of conviction is consequently correct.

4. We have to consider rival submissions in the light of evidence as reappreciated by us and on the basis of case law that are relied upon the learned counsel for the accused. We are unable to accept the dying declaration as reliable and correct document as it is not recorded by a Magistrate. There is no statement by police officer that the condition of the victim was so precarious that Magistrate could not be summoned for. In this case the victim was put on fire in the night of 23rd and died in the morning of 26th. In the meantime daughter of the victim visited the victim and the daughter has deposed that the victim spoke to her though in cross examination she admits that she was almost unconscious. There is no evidence on record to show that attempt was made to get the dying declaration recorded as per law by the Magistrate. Apart from this inherent infirmities in the dying declaration there is oral evidence in this case which militates against the acceptance of dying declaration and sole basis for the purposes of conviction. P.W.1-Shashikala Kasabe who is a social worker was present when the dying declaration was recorded states that she was present when the declaration was recorded. She prove Exh.7 and states that the time when victim was taken to the hospital was around 12.30 in the night and the victim was in condition to make the statement. However P.W.2-Latabai Patil who is neighbour states that she heard commotion and therefore she came out of her hut and saw that the victim is being taken out from her hut in burnt condition and being taken to the hospital. When she saw the victim the victim was in unconscious state and according to this witness the victim was taken to the hospital around 3.00 a.m. There is time lag of about three hours in the statement of P.W.1 and P.W.2 as to the time when the victim was taken to the hospital. Apart from that P.W.2 states that she saw the victim in unconscious state.

5. Apart from this P.W.3 who is the mother of the victim claims that she visited her in the hospital on the next day and saw her in burnt condition and was told by the victim that the she was burnt by the accused. However this witness in cross examination admits that the victim was not in position to speak. There is yet another witness P.W.5 who was brother of the victim who came to the hospital saw her and was told by her that she was burnt by the accused. The testimony of P.Ws.3 and 5 if accepted that the victim was in position to speak even in the morning of 24th when the daughter and brother visited her, if that is factual situation nothing prevented the police from getting the statement recorded by a Magistrate. If that evidence is rejected because of admission in cross examination that the victim was not in position to speak then the declaration as recorded by the police officer proved by P.W.1 become doubtful. Because then it becomes difficult to accept that the witness was in conscious condition and in a position to make statement, particularly when P.W.2 who was neighbour states that when the victim was taken away she was in unconscious state. There is no eye witness in this case. The statement of P.Ws.1, 3 and 5 that the victim told them that she was burnt by the accused is not acceptable because of clear cut admission in cross examination by P.W.3 that the victim was not in a position to speak and the claim by P.W.2 that when the victim was taken to the hospital she was unconscious. In such circumstances it is highly unsafe to accept the dying declaration as the only basis for conviction. In our opinion, the conviction in the circumstances cannot be sustained. Since we are not confirming the conviction and sentence as imposed by trial Court we need not consider the different evidence as given by the accused. In our opinion, the prosecution has failed to establish that the death of the victim was caused by an act of the accused. In the result, therefore, the appeal succeeds and is allowed. The order of conviction and sentence dated 11.7.1997 passed by the III Additional Sessions Judge, Thane in Sessions Case No. 560 of 1996 convicting the appellant-accused under Section 302 of Indian Penal Code to suffer life imprisonment is set aside. Accused be set at liberty forthwith if not required otherwise.