Dropadabai Namdeo Khese vs State Of Maharashtra
2004 Latest Caselaw 374 Bom

JUDGMENT

B.H. Marlapalle, J.

1. In Sessions Case No.131 of 1998 the present appellant/accused was put on trial and by his judgment and order dated 9th March, 2000 the learned 2nd Additional Sessions Judge at Ahmednagar convicted her for the offences punishable under Sections 302 and 342 of the Indian Penal Code (the Code, for short) and she is sentenced to suffer life imprisonment and to pay a fine of Rs. 500/-, in default to suffer R. I. for one month for the offence punishable under Section 302 of the Code and to suffer R.I. for one month and to pay fine of Rs. 500/-, in default to suffer R. I. for one month for offence punishable under Section 342 of the Code. Hence, this appeal.

2. As per the prosecution Santosh Namdeo Khese, the son of the accused, was married to Mangala, daughter of P. W. 4 Bhagwan Jijaba Sathe, from the same village and their respective houses were close-by. The accused was staying with her husband, son and daughter-in-law. It appears that on 30th May, 1998 Mangala and the accused had gone to their agricultural land to work and Santosh and his father Namdeo Khese had gone to Shirur (Taluka headquarter). At about 11.00 a.m., while working in the agricultural land, the deceased Mangala requested the mother-in-law to buy her a pair of Chappals and the mother-in-law, in turn, told the deceased to ask her father to buy a pair of Chappals for her. The deceased replied that when she was working for her matrimonial home she could not ask her father to buy a pair of Chappals for her. At this reply, the mother-in-law abused the deceased and at that time P. W. 4 Bhagwan was passing by. He heard the exchange of words between the accused and the deceased and told the deceased to go home rather than arguing with her mother-in-law. The deceased, therefore, went home at about 11.30 a.m., the mother-in-law followed her and while the deceased was drinking water the mother-in-law picked up the kerosene can, poured kerosene on her person and set the deceased on fire by lighting a match stick. The accused ran away by bolting the door of the house from outside. The deceased broke open the door and came out on the road in burning condition. The neighbours gathered, including the nephew of the deceased by name Nitin Appa Khese and they tried to extinguish the fire. The deceased was taken to the Civil Hospital at Nagar. Her dying declarations came to be recorded on two occasions and while under treatment she died on 3rd June, 1998. Initially an offence was recorded under Section 307 and the accused was arrested on 31st May, 1998 but subsequently the crime was amended and the F.I.R. came to be registered for an offence under Section 302 of the Code.

3. The prosecution examined in all ten witnesses. The deceased Mangala reportedly made the first oral dying declaration to P.W. 3 Tukaram Maruti Ugnade, Police Patil, P.W. 7 Kishan Bhimaji Gaikwad, Naib Tahsildar recorded dying declaration at Exhibit-22 and P.W. 9 Janaku Kondiram Vidhate, A. P. I. recorded yet another dying declaration at Exhibit-27 which was also treated as F.I.R. P. W. 1 Dr. Laxman Sakharam Pawar conducted autopsy and submitted postmortem notes at Exhibit-11. Second oral dying declaration was reportedly made by the deceased to P.W. 4 Bhagwan. P. W. 5 Dnyaneshwar Natha Sathe is the cousin of the deceased. When the deceased was taken to the civil hospital at Nagar P.W. 8 Dr. Sunil Pannalal Pokharna had admitted her on 30th May, 1998 in the burn-ward after recording the case history.

4. P. W. 1 Dr. Pawar stated in his depositions that Mangala had suffered 82% superficial to deep burns and she died due to cardio respiratory failure due to septesemic shock due to 82% superficial burns. The postmortem on the dead body was performed by himself and Dr. Mrs. Deshmukh on 4th June, 1998 between 3.00 to 3.30 p.m. He stated that there was no injury to the lyrynx and trachea and over the neck there was burn injury superficial to deep. He also stated that brain was congested due to burn injuries and admitted that it was possible that at the time of burns the deceased might have suffered about 75% burns. He denied the suggestion that liver, brain and lungs were not congested due to burn injuries. On the basis of this medical evidence the trial Court has accepted that deceased Mangala died on account of the burn injuries she had sustained on 30th May, 1998. We do not find any infirmity in the said finding and, therefore, we agree with the same.

5. The moot question for our consideration is, therefore, whether it was the accused who had set the deceased Mangala on fire on 30th May, 1998 in her house at about 11.30 a.m. The trial Court has answered this issue in the affirmative and mainly by relying upon the dying declarations. Shri Damale, the learned counsel for the Appellant submitted that the dying declarations did not inspire confidence as each of them contradicted the other and there were material improvisations in the story that was tried to be placed before the trial Court. In short, it is the case of the defence that deceased Mangala died a suicidal death and the prosecution failed to prove its case on the basis of the circumstantial evidence. It was also pointed out that the material witnesses like Nitin as well as other neighbours, who had purportedly seen the deceased Mangala coming out of her house in burning condition, were not examined. Similarly, her husband as well as father-in-law were not examined before the trial Court. There was no motive proved by the prosecution and it was inconceivable that the mother-in-law would set the daughter-in-law on fire only because she replied her arrogantly. Let us, therefore, examine the evidence placed before the trial Court by the prosecution.

6. P. W. 4 Bhagwan (father of the deceased) stated before the trial Court that on the fateful day he was returning from his maternal uncle's house and saw the accused and deceased working in their agricultural land in the morning and they were quarrelling on account of Chappals. On hearing the quarrel he persuaded the accused whereupon the accused told him to take his daughter to his house else she will set her on fire. He, therefore, advised the deceased Mangala to go home rather than quarrelling with her mother-in-law and, thereafter, he went to his house. After about 11/2 hours one Dnyaneshwar went to his house and told him that Mangala was burnt and immediately he went to the house of Mangala and saw her lying in the door in burnt condition. He asked Mangala as to how she received the burn injuries to which she replied that while she was drinking water, the accused set her on fire by pouring kerosene on her person and left the house by bolting the door from outside. He had taken Mangala to the civil hospital, Ahmednagar. In his cross examination he stated that the distance between his house and the house of accused was about 1500 to 2000 ft. He admitted that he could not assign any reason as to why the police, while recording his statement, did not record the fact that while returning from his maternal uncle's house he had heard quarrel between the deceased and the accused and that he advised her daughter to go home. A number of other improvisations were noted in his testimony as compared to the statement given to the police and material omission was regarding the oral dying declaration purportedly made to him by the deceased which did not find place in his statement recorded by the police. In his lengthy evidence recorded before the trial Court there was no instance of ill-treatment by the accused to the deceased. The so called oral dying declaration, as made by the deceased to this witness, is, thus, not trustworthy.

7. P. W. 5 Dnyaneshwar is the cousin of the deceased. He also claimed that the deceased had made an oral dying declaration to him stating that it was the accused who had set her on fire after pouring kerosene on her person and he also stated that the same statement was made by the deceased to the Police Patil who had also reached the spot. In his cross-examination he stated that the Police Patil had recorded Mangala's statement in his presence, whereas there was no such statement recorded by the Police Patil. His testimony is, thus, unreliable, though he was supposed to be the person who had informed P.W. 4 Bhagwan regarding Mangala having received the burn injuries. He also stated that one Deubai Khese had shouted that Mangala was burnt and that is how he came to know about the incident at the first instance.

8. P. W. 3 Tukaram Ugnade, the Police Patil of village Padali Ranjangaon stated before the trial Court that on the day of the incident he was in his agricultural land and P. W. 5 Dnyaneshwar went to him between 11.00 to 11.30 a.m. and informed him about the incident. P.W. 5 Dnyaneshwar had told him that the accused had set Mangala on fire by pouring kerosene and he came to the house of the accused. He asked Mangala as to what happened to which she replied that she was set on fire by pouring kerosene by her mother-in-law on account of Chappal. In his cross-examination, he admitted that he did not inform to the nearest police station in writing about the incident though police had come to his village on the date of the incident between 5.30 to 6.00 p.m. and he did not give information regarding the oral dying declaration made by the deceased though the police had inquired about the incident. He stated that his statement was recorded by police on 31st May, 1998 at 10.00 p.m. after the spot Panchanama was prepared. This statement never came on record before the trial Court. He admitted that, when he reached the place of incident all the family members were present and in their presence he asked Mangala as to what had happened. He admitted that the height of Mangala's door was 4-1/2 ft. and the door was of one plank, it had chain and bolt at the middle of its frame and he was not aware whether the chain opens from both the sides. The roof of the house was of tin. He admitted that Mangala was serious and she was shouting because of the burn injuries. He denied that Mangala was unconscious. This oral dying declaration has also been discarded by the trial Court and rightly so.

9. We are, therefore, required to examine whether the trial Court was right in placing reliance on the recorded dying declarations i.e. Exhibit-22 and Exhibit-26. P. W. 7 Kisan, Special Executive Magistrate, stated that police headconstable Gangarde of Parner Police Station gave him a letter for recording the dying declaration of Mangala w/o Santosh Khese who was admitted in the civil hospital at Ahmednagar. He, therefore, went to the civil hospital and met the doctor who examined Mangala and made an endorsement. He proceeded to record the dying declaration of Mangala as per her say. The doctor again examined Mangala and certified that she was able to make the statement and, thereafter, Mangala had put her thumb mark on the dying declaration in his presence. He also stated that the doctor in his presence had asked some questions and Mangala gave replies to those questions. He had also asked questions to Mangala for convincing himself of her state of mind. Recording of dying declaration took 15 minutes and it was completed at 6.15 p.m. on 30th May, 1998 (Exhibit-22). Exhibit-22 is a very short disclosure purportedly recorded by this witness. At 6.00 p.m. the Medical Officer P.W. 8 Dr. Pokharna purportedly made an endorsement that the patient was conscious and could give statement and at 6.30 p.m. he made similarly endorsement at the end of the document. This document states "on the date of incident the mother-in-law had told the deceased to bring Chappals and she did not do so. The mother-in-law, therefore, picked up kerosene can, poured kerosene on her person and set her on fire by a match stick. At that time her husband was at Shirur. Her husband was not involved in the incident and he had no concern with the same. He should not be harmed in any way. She was set on fire by her own mother-in-law. The statement was made voluntarily and it was read over to her and was recorded correctly."

10. Now, this statement claimed to be a dying declaration did not say anything about the quarrel between the mother-in-law and daughter-in-law in the agricultural land. On the other hand it depicted that the whole incident had happened in the house itself. The cause for the mother-in-law setting Mangala on fire is her refusal to bring the Chappals. As against this dying declaration Exhibit-22, let us examine the second dying declaration which came to be registered as F.I.R. at Exhibit-27. This was recorded by P.W. 9 Janaku, A. P. I. He stated that he was attached to the Supa Outpost under the Parner Police Station on the date of incident and he recorded the statement of the deceased while she was in the civil hospital at Ahmednagar. The dying declaration recorded by this witness stated that on the date of incident the husband and father-in-law of the deceased had gone to Shirur at about 6.00 a.m. and the accused and the deceased went to the agricultural land and while they had engaged themselves in the work of lifting stones at about 11.00 a.m. the deceased asked her mother-in-law to buy a pair of Chappals to which the mother-in-law informed that the deceased should go to her father and ask him to buy a pair of Chappals. The deceased replied to her mother-in-law that she was doing the work in the matrimonial home and how could she go to her father to buy a pair of Chappal. The mother-in-law got angry and started abusing her. Her father was passing by and heard the exchange of words between the two. He advised her that instead she should go home. She, therefore, went home and while she was drinking water at about 11.30 a.m. the mother-in-law picked up the kerosene can lying in the house, poured kerosene on her person and set her on fire with a match stick. The mother-in-law ran out of the house and bolted the house from outside. She broke open the door and came out of the house in burning condition. Nitin Appa Khese, who was her nephew and staying in the immediate neighbourhood, saw her and called other people.

It is not known how P.W. 9 Janaku arrived at the civil hospital at Ahmednagar where a police constable from the nearest police station could be always available. It is not the case of the prosecution that any complaint was filed with the Supa Police Outpost before the deceased was taken to the civil hospital at Ahmednagar. This statement is claimed to have been recorded at about 4.00 p.m. He claimed that the letter at Exhibit-28 was addressed by him to the medical officer on duty but did not bear the time and any endorsement of the doctor having received the same.

11. In his depositions before the trial Court P.W. 8 Dr. Sunil admitted that he had not recorded the case history when the deceased was admitted in the civil hospital though he had signed the same case papers. He also admitted that on the case paper there was no signature of the patient or any of her relations below the noting regarding the case history and that the patient was serious when she was admitted. We have perused the medical case record (Exhibit-25) and it cannot be said to be free from doubts/suspicion. What is produced on record is not the original medical case record but it is only a Photostat copy. On 30th May, 1998 there is an endorsement at 10.00 p.m. purportedly made by the mother of the deceased regarding her having been made aware that the condition of her daughter was serious. Similar endorsement under the signature of the father appears on the same date at about 6.30 p.m. on the next page. Handwriting on the first page and the second page regarding clinical notes is of two different persons. The medical officer, who recorded the case history, purportedly disclosed by the deceased, has not been examined by the prosecution. It would not be, therefore, safe to rely upon such a document for basing an order of conviction.

12. The spot Panchanama at Exhibit-19 shows that the place of incidence was one single room admeasuring 14'x7-12', the height of the roof was 6-1/2 ft. on the southern side and 5 ft. on the northern side. There were signs of water spread on the ground and some pieces of cloth were stuck to the ground. The house had a one plank wooden door and it was uprooted from the bottom. Either the external or internal latch was not shown to be broken. The patient had received 82% burn injuries and it is inconceivable that she could have struggled to break open the door or could have succeeded in opening the door by uprooting it. As per the dying declaration recorded by P. W. 9 Janaku Vidhate, A. P. I. at Exhibit-22 the deceased had come out of her house while she was set on fire and her nephew Nitin had seen her at the first instance. Similarly, Dnyaneshwar had claimed that he learnt about the incident through Deubai Khese who had purportedly shouted that Mangala was burnt. Both these witnesses have not been examined though the police had recorded their statements during investigations. In fact, they were material witnesses and it is not known why the prosecution chose not to examine them. Nithin, at the relevant time, was of the age of 10 years and he could have been examined as a minor witness. No item in the house/room was found to have been damaged. If the mother-in-law had poured kerosene on her daughter-in-law, natural human behaviour would show that the victim, at the first instance, would show the signs of resistance and secondly to save herself from any further consequence. When the kerosene was poured on the person of the deceased, it is not the prosecution case that the house was latched from inside. Therefore, fearing any further consequences the deceased would have, in the normal circumstances, run away or tried to escape from the place. She would not have waited for the mother-in-law to light the match stick and set her on fire. It is nobody's case that the accused was capable of overpowering the deceased after kerosene was poured on her person. The evidence also shows the presence of the mother-in-law near the victim when she was lying in her house in burnt conditions, if the mother-in-law had really poured kerosene and set her daughter-in-law on fire, there was no reason why she remained present at the spot. It is not the case of the prosecution that the mother-in-law was missing for sometime and she was either caught by the villagers or by the police subsequently. If the relations of accused and others were told that the culprit was the mother-in-law, she could not have been spared without any harm. The husband of the victim and the husband of the accused have not been examined though their statements were recorded during the investigations. The prosecution chose not to bring on record the evidence of the husband of the deceased. The investigation was misdirected and the real culprit was allowed to escape. Thus, the prosecution story regarding the involvement of accused, in setting deceased Mangala on fire, raises strong suspicion and it cannot be held that the prosecution has proved its case beyond reasonable doubt regarding the involvement of the accused in the said offence. The oral dying declarations are not trustworthy and the recorded dying declarations are not consistent with each other. They do not inspire confidence. There is no motive which could be reasonably accepted to be the reason behind the mother-in-law setting her daughter-in-law on fire. There is no history of any ill-treatment or harassment meted out by the mother-in-law. If the dying declarations are found to be suspicious and untrustworthy, irrespective of their numbers, the conviction cannot be based on such evidence though they meet the technical requirements. In fact, much requires to be said about the testimony of P. W. 8 Dr. Sunil in this case. It is not known why the deceased in her dying declaration recorded by the P. W. 7 Kisan went on to state that her husband was not involved in the crime, she had no complaint against him and he should not be harmed or connected in the case. The role played by P.W. 9 Janku, A. P. I. is not free from suspicion. The patient was, at the first instance, admittedly taken to the hospital at Shirur, a nearby Taluka place and thereafter she was brought to the civil hospital at Ahmednagar. The medical record from the civil hospital at Shirur was not placed before the trial Court. The patient's case history ought to have been recorded and for the reasons known to the prosecution it was kept away from examination by the trial Court. No doctor from the civil hospital at Shirur has been examined. Village Supa was nearest to the village where the incident took place (about 10 Kms.) and there are doctors at the same place. Shirur town is towards south of village Supa whereas Admednagar is towards north of Supa. The patient, at the first instance, could have been given medical treatment at Supa itself. This was not done nor was there any complaint filed at the Supa Police Station while the patient was being taken to the hospital at Shirur. The patient sustained burn injuries between 11.00 to 11.30 a.m. and by the time she was admitted in the civil hospital at Ahmednagar it was about 3.30 p.m. The victim died on 3rd June, 1998 while under medical treatment. She, thus, survived for about four days with 82% burn injuries and was declared to be in critical conditions right from the time of her admission in the civil hospital at Ahmednagar. We, therefore, do not agree with the view taken by the trial Court in recording an order of conviction by relying upon the two recorded dying declarations viz. Exhibit-22 and Exhibit-27. Unless the dying declarations are found to be trustworthy and free from any suspicion they cannot be the sole piece for recording an order of conviction. The order passed by the trial Court is perverse and, therefore, it requires to be set aside.

13. In the result, this appeal succeeds and the same is hereby allowed. The order of conviction and sentence dated 9th March, 2000 passed by the learned 2nd Additional Sessions Judge at Ahmednagar in Sessions Case No. 131 of 1998 is hereby quashed and set aside. The appellant/accused (Dropadabai w/o Namdeo Khese) is acquitted of the offences punishable under Sections 302 and 342 of the Indian Penal Code. She be released forthwith unless she is required to be kept in custody in some other case.