Suresh S/O Arjun Dodorkar (Sonar) vs State Of Maharashtra
2005 Latest Caselaw 271 Bom

JUDGMENT

P.V. Hardas, J.

1. The appellant who is convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs. 500/- with a default stipulation to undergo further R.I. for fifteen days in the event of non-payment of fine, by the 1st Ad hoc Additional Sessions Judge, Jalgaon, by judgment dated 21,10.2003, by this appeal questions the correctness of the conviction and sentence.

2. Such of the facts as are necessary for the decision of this appeal can briefly be stated thus :-

P. W. 8 P.S.I. Anil Sonwane, attached to the Zilla Peth police station, Jalgaon, received a telephonic message from the Civil Hospital, Jalgaon on 17.1.2003, regarding admission of one Vimal in the hospital with burn injuries. On receipt of the information, P.W. 8 Sonwane immediately proceeded to the hospital and reached the hospital on 17.1.2003 at about 1.00 a.m. He contacted the Medical Officer, Dr. Wankhede, and informed the Medical Officer that he had come to record the statement of injured Vimal. Dr. Wankhede examined Vimal and opined that Vimal was in a fit mental condition to give her statement, P.W. 8 P.S.I. Sonwane himself questioned Vimal and satisfied himself that Vimal was in a fit condition to give her statement and accordingly recorded her statement at Exh. 27. In the said statement at Exh. 27 Vimal had stated that the appellant had poured kerosene on her and had set her ablaze. P.W. 10 P.S.I. Arjun Pawar, a Police Sub-Inspector attached to police station, Raver, received the statement of Vimal, recorded by P.W. 8 P.S.I. Sonwane of the Zilla Peth police station. On the basis of the said statement P.W. 10 P.S.I. Pawar registered an offence vide Crime No. 3/2003. After registration of the offence he proceeded to the scene of the offence and drew the scene of the offence panchanama at Exh. 14 in the presence of P.W. 1 Shabbir and P.W. 2 Vikas. From the scene of the offence he seized a kerosene container, pieces of bangle, burnt pieces of cloth, match box. etc. He had later on sent the seized articles to the Chemical Analyser, Aurangabad alongwith requisition at Exh. 37. The report of the Chemical Analyser is at Exh. 38. P.W. 7 Nalini Joshi, an Executive Magistrate at Jalgaon, received a requisition from the Zilla Peth police station on 17.1.2003 for recording the dying declaration of Vimal. The requisition is at Exh. 22. She then proceeded to the Civil Hospital, Jalgaon and contacted the Casualty Medical Officer on duty. The Medical Officer examined Vimal and informed her that Vimal was in a fit condition to give her statement and accordingly endorsed so on the sheet of paper. P.W. 7 Nalini Joshi, after a preliminary inquiry with Vimal, recorded the statement of Vimal at Exh, 24. The Medical Officer, after conclusion of the recording of the statement, also endorsed on the said declaration. The appellant/accused came to be arrested vide panchanama at Exh. 19 on 20.1.2003 in the presence of P.W. 5 Bhagwat. On completion of the investigation, a charge-sheet against the appellant came to be filed and on committal of case to the Court of Sessions, a charge against the appellant, vide Exh. 7 was framed for an offence punishable under Section 302 of the Indian Penal Code. The appellant/accused, vide his statement at Exh. 8 denied his guilt and claimed to be tried. Prosecution in support of its case examined 11 witnesses. Prosecution relied upon the evidence of P.W. 3 Suman, sister of deceased Vimal and P.W. 6 Onkar, brother of deceased Vimal, to whom Vimal is alleged to have made oral dying declaration. Prosecution also relied on the evidence of P.W. 7 Nalini Joshi and P.W. 8 P.S.I. Sonwane had recorded the dying declaration at Exhs. 24 and 27, respectively. Prosecution also relied on the testimony of P.W. 9 Dr. Rahul Patil and P.W. 11 Dr. Sunil Narkhede who had examined deceased Vimal and had opined that she was in a fit condition to give her statement.

3. Before we advert to the submissions advanced before us by the learned Counsel appearing on behalf of appellant/accused, it would be useful to refer, first, to the evidence in respect of the dying declarations at Exhs. 24 and 27.

4. P.W. 7 Nalini Joshi, an Executive Magistrate states that on receipt of the requisition for recording the dying declaration, she proceeded to the Civil Hospital, Jalgaon where she contacted Medical Officer P.W. 9 Dr. Rahul Patil. P.W. 9 Dr. Patil examined Vimal and opined that she was in a fit condition to give her statement and accordingly made an endorsement on the dying declaration. P.W. 7 Nalini Joshi thereafter recorded the dying declaration of Vimal. According to P.W. 7 Nalini Joshi, injured Vimal had stated to her that Vimal was residing alongwith her husband and son. She was married to the appellant about 10 to 12 years back. The appellant was a Tailor by profession. The appellant used to suspect her chastity and on that count used to quarrel and beat her. Vimal had also stated that the appellant was addicted to liquor. Vimal further stated that on the date of the incident the appellant reached home at about 8.00 p.m. to 8.30 Vimal had already prepared the dinner and she asked the appellant to take his dinner. The appellant, however, quarrelled with her and beat her. Thereafter Vimal slept and the appellant poured kerosene on her person and set her ablaze. Vimal thereafter shouted and hurriedly came out of the house. Her sister, who was her neighbour, extinguished the flames and admitted Vimal in the Government Hospital of village Pal. The appellant fled from the spot. Vimal was thereafter brought and admitted in the Civil Hospital at Jalgaon. In cross-examination P.W. 7 Nalini Joshi had admitted that she was not holding the post of Executive Magistrate. The powers of Executive Magistrate were, however, delegated to her by the Collector. According to her, the requisition at Exh. 22 was received by her on 17.1.2003 at about 1.15 p.m. She states that she reached the hospital within ten minutes of receiving the requisition. According to her. statement of Vimal was recorded till about 1.30p.m. According to Nalini Joshi (P.W. 7) she was in the hospital premises for about 30 to 45 minutes. According to her, till the time she was in the hospital, the police did not come there. She has stated that it did not happen that in her presence police had recorded the statement of injured Vimal. She has further stated that prior to recording the statement of Vimal she had obtained the endorsement of the concerned Medical Officer. At that point of time the paper on which the endorsement was obtained was a blank paper. She has further admitted that in the statement at Exh, 24. Vimal had not specifically told her that her husband was suspecting her chastity. Perusal of the dying declaration at Exh. 24 shows that the recording commenced at 1.30 p.m. and concluded at 1.45 p.m.

5. P.W. 9 Dr. Patil states that on 17.1.2003 he was on duty as the Casualty Medical Officer from 8 a.m. to 2 p.m. P.W. 7 Mrs. Joshi. Executive Magistrate, reached the hospital and contacted him. On being apprised by Mrs. Joshi about the purpose of her visit, he examined and found that Vimal was fully oriented, conscious both mentally and physically to give her statement. He states that he had accordingly endorsed on the dying declaration and the endorsement is at Exh, 23/A. The Executive Magistrate then recorded the statement in his presence. On conclusion of the recording of the dying declaration he endorsed below the dying declaration at Exh. 25 regarding the consciousness of Vimal during recording of the statement. The endorsement of the Medical Officer at Exh. 23/A reads as under :-

Patient examined found conscious, oriented mentally and physically alert to give statement. Mrs. Joshi Executive Magistrate, allowed to take statement.

This endorsement is made at 1.28 p.m.

The endorsement at Exh. 25 reads as under :

Statement recorded in my presence. Statement was read over, recorded as per patient, accepted by her. Left thumb impression of patient taken. Signed by Mrs. Joshi Executive Magistrate. Patient was conscious, oriented mentally and physically alert during/at the end of statement.

This endorsement was made at 1.45 p.m.

6. P.W. 8 P.S.I. Sonwane states about going to the Civil Hospital for recording the statement at 1.00 a.m. and met the concerned Medical Officer, who endorsed that Vimal was in a fit condition to give her statement. According to him, the recording of the statement commenced at 1.30 a.m. and concluded at 2,15 a.m. The said statement is at Exh. 27. In cross-examination P.W. 8 P.S.I. Sonwane has admitted that one Lahase, a Police Constable, who was his Writer, had accompanied him. He has further admitted that the dying declaration was scribed by the Writer Constable. He has further stated that as per his dictation Police Constable Lahase has scribed the contents of the dying declaration. He has further admitted that he did not obtain separate endorsement of the Doctor prior to recording the statement. He states that he had obtained the endorsement of the Doctor only once. He has further admitted that the endorsement appearing on Exh. 27 was obtained after completion of recording of dying declaration. He states that while recording the dying declaration, the Executive Magistrate did not reach the hospital. He states that he returned back to the hospital at about 2.30 a.m. On perusal of the original dying declaration at Exh. 27, it transpires that the offence came to be registered at 9.35 p.m. on 17.1.2003.

7. In the statement at Exh. 27 injured Vimal had stated that on 16.1.2003 in the evening she had sent the daughter of her neighbour Lilabai in village Pal for purchasing wheat. Since the said girl did not go to the shop. Vimal herself went and bought, wheat. Her husband took exception to her going and had asked her as to what was her relation with the shopkeeper. There was a quarrel in between them and thereafter her husband went out. The appellant returned home at about 7 p.m. or 7.30 p.m. in the evening carrying a small plastic container of kerosene. Vimal asked her husband to lake his dinner. Thereupon her husband said that he would not eat anything prepared by her as she was a woman of loose character. So saying her husband threw kerosene on her and set her ablaze. Due to that her sari caught fire and she rushed out of the house in that condition. Hearing her cries the residents of the lane gathered there and her sister Suman poured water on her and extinguished the fire. Her sister Suman admitted her in the Government hospital at Pal and thereafter she was admitted in the Civil Hospital at Jalgaon.

8. In the dying declaration at Exh. 24 injured Vimal had stated that on the day of the incident her husband who had a suspicious nature and who used to frequently beat her after consuming liquor, came home. She had already prepared the dinner and after his arrival she asked him to take his dinner but her husband began quarrelling with her and, therefore, out of anger Vimal slept. While she was sleeping, her husband took a can of kerosene from inside the house, poured it on her and set her ablaze. She immediately rushed out and on hearing her cries her sister Suman extinguished the flames and admitted her in the hospital. The appellant fled from the scene of the offence.

9. A perusal of both the dying declarations reveal that there are inter se variance. In the dying declaration at Exh. 24 Vimal had stated that the appellant, under the influence of liquor, used to beat her as he was of suspicious nature. She states that when she had asked him to take his dinner, the appellant had quarrelled with her and, therefore, in anger she had gone to sleep. While she was asleep, the appellant had poured kerosene on her-and had set her ablaze. In the dying declaration at Exh. 27 Vimal had stated that in the evening she had sent the daughter of her neighbour for purchasing wheat, but as the said girl had not gone, she had herself gone and purchased wheat. According to her, the appellant, on his return, asked her as to why she had gone for purchasing wheat and what was the relationship between Vimal and the shopkeeper. The appellant then went out of the house and returned back at about 7.00p.m. or 7.30 p.m. carrying a small plastic Can of kerosene. Vimal had asked her husband to take his dinner but her husband had said that he would not eat anything prepared by her as she was of lose character. On so saying her husband poured kerosene on her and set her ablaze. It would thus be seen that in respect of the incident there is a major variance though there is a common thread in both the dying declarations that it was the appellant who had set her ablaze. In cases resting on multiple written dying declarations, the Courts cannot pick and choose any one dying declaration. All the dying declarations have to be consistent in respect of material aspects of the incident. According to us, consistency is expected in multiple dying declarations in respect of the names and the number of accused, the prelude to the incident and the incident itself. In these two dying declarations, there is consistency in respect of the name and the number of accused. However, in respect of the prelude to the incident, there is variance. There is also variance in respect of the incident itself. The variance is apparent on perusal of the dying declarations and can be discerned from the perusal of the same. Therefore, according to us, no reliance can be placed on the two written dying declarations at Exhs. 24 and 27, as acceptance of any one dying declaration necessarily renders the other as false. If in the dying declaration the truthfulness of the narration itself is rendered doubtful, no reliance whatsoever can be placed on the dying declaration. Merely because the overt act attributed to the accused is consistent in both the dying declarations would not make the dying declarations a reliable piece of evidence. The dying declaration has to pass all the tests of reliability as the declarant is not available for cross-examination. In cases where there are multiple dying declarations and acceptance of one dying declaration falsifies the other, the dying declarations have to be necessarily rejected. In our opinion, therefore, no reliance can be placed on the dying declarations at Exhs. 24 and 27.

10. There is another reason to doubt the correctness of the two dying declarations and that is, according to the endorsement of the Medical Officer, Exh. 24 came to be recorded in between 1.00 p.m. to 1.28 p.m. The dying declaration at Exh. 27, as per the endorsement of the Medical Officer, came to be recorded in between 1.30 p.m. to 2.15 p.m. An offence on the basis of these dying declarations came to be registered at 9.35 p.m. P.W. 7. Nalini Joshi has stated that she was in the hospital for 30 to 45 minutes and she had not seen any police officer who had come for recording the statement. There is no time difference between the recording of the two dying declarations and, therefore, it is unbelievable that after recording Exh. 24 at 1.28 p.m., the dying declaration at Exh. 27 came to be recorded in between 1.30 p.m. to 2.15 p.m. On perusal of the dying declaration at Exh. 27, it is not clear whether the Medical Officer has written 1.30 a.m. to 2.15 a.m. or 1.30 p.m. to 2.15 p.m. Even otherwise, P.W. 8 P.S.I. Sonwane states that the Medical Officer was one Dr. Wankhede, while according to P.W. 11 Dr. Sunil Narkhede he had made the endorsement in respect of Exh. 27. The scribe has not been examined who had actually scribed the dying declaration. The evidence of P.W. 8 P.S.I. Sonwane in the examination-in-chief is misleading as he States that he had recorded the statement at Exh. 27, while in the cross-examination he has admitted that it was his Writer Constable who had recorded the statement. It is inexplicable as to why P.W. 8 P.S.I. Sonwane should suppress this fact of recording the statement by his Writer Constable and he was constrained to admit the same in the cross-examination.

11. Prosecution has also placed reliance on the oral dying declaration alleged to have been made by deceased to P.W. 3 Suman, her sister. P.W. 3 Suman states that deceased Vimal was her sister and was married to the appellant. Vimal was blessed with a son named Rahul who was 6 years old. Prior to the marriage with the appellant, Vimal was married to one Anil More from whom Vimal had begotten son named Rahul. After death of Anil, Vimal was residing at her parents house and thereafter Vimal was married to the accused. According to her, at about 7.00 p.m. or 7.30 p.m. while she was preparing food at her house, she heard the cry of Vimal as "Suman save me, save me", Suman, therefore, immediately went to the house of Vimal and noticed Vimal engulfed in flames. The accused was present in the house. Vimal was found in the court-yard near the door of her house. Suman. therefore, threw water which was in a vessel near the door of Vimal and extinguished the flames. She also brought a quilt from the house. The accused did not allow to put the quilt on Vimal by saying "let her burn". The accused had also caught both her hands. She, however, bit the hand of the accused and extricated herself and then doused the flames with the help of a quilt. She states that she inquired from Vimal about the incident and Vimal had told her that accused had poured kerosene on her and had set her ablaze. She states that thereafter the accused lied from the spot. She states that she went to the house of one P.W. 4 Etbar and she, Etbar and her sister Kamal went to the house of Vimal and took Vimal to the Primary Health Centre at Pal. Vimal was thereafter brought to Civil Hospital, Jalgaon in a jeep. She states that in the jeep her brother also was present along with P.W. 4 Etbar. In the jeep Vimal was asked about the incident and Vimal had stated that she had asked Rekha, daughter of one Lilabai to bring wheat from a shop, but Rekha did not go to the shop and, therefore, Vimal had gone to the grocery shop for purchasing wheat. Thereafter she had prepared food. The accused had asked her as to why she had gone to the shop. The accused had stated that he would not eat. food prepared by her as she was a woman of loose character. Thereupon Vimal had told her son Rahul as "Rahul let us sleep". The accused had gone out of the house for answering the call of nature and thereafter he had poured kerosene on her and set her ablaze. In cross-examination she has admitted that the Primary Health Centre at Pal is located at a walking distance of 10 to 15 minutes. She has admitted that in village Pal there is Police Chowki. She has stated that she had accompanied Vimal to the hospital and was with her till Vimal expired at about 10.00 p.m. on that day. She has further admitted that when Vimal cried loudly by saying "Suman save me, save me" that time the husband of Vimal was not present in the house. She has stated that Rahul, son of Vimal was alone present in the house. She has admitted that she had not gone to the house of her parents to inform them about the incident. She has admitted that she has not informed the police in the Police Chowki. She has further admitted that the police had recorded her statement 4 to 5 days of death of Vimal. Omission has been duly proved about the alleged oral dying declaration made by Vimal in the jeep, Suman has admitted that she has not stated in her statement about the dying declaration of Vimal made in the jeep. She has admitted that the police has visited the hospital for about 4 to 5 times and at that time she has not informed the police what Vimal had narrated to her in the jeep. Omission has been duly proved that she has not stated in her statement that accused had caught her hands and thereafter she has bitten his hand and extricated herself. Omission has been duly proved that she has not stated in her statement that the accused had caught her neck and dragged her at some distance. She has admitted that Rahul had not come to the hospital since the incident till Vimal expired.

12. P.W. 6 Onkar. brother of Vimal, states that Suman had come to his house and had informed him that Vimal had caught fire and, therefore, he directly reached the Primary Health Centre at Pal, Vimal was taken in a jeep and in the jeep he inquired from Vimal about the incident and Vimal had stated that she had asked the daughter of Lilabai to bring wheat from a shop, however, the girl declined and, therefore, Vimal had gone to the shop for purchasing wheat. Vimal further told him that on that count the accused had scolded her and had abused her by saying that she was a woman of loose character. Accused had said that he would not take food prepared by her. Thereafter the accused had poured kerosene on her and had set her ablaze. In cross-examination P.W. 6 Onkar has admitted that on 17.1.2003 in the evening he had been to the Police Chowki at Pal and had informed them what Vimal had told him in the jeep. He has admitted that his statement was recorded by the police. Omission has been duly proved that he had not stated in his statement that when he had inquired from Vimal about the incident. Vimal had told him that she had sent daughter of Lilabai for purchasing wheat for her and the girl had declined and, therefore, Vimal had herself gone to the shop and on that count the accused had scolded her and had abused her by saying that she was a woman of loose character. It is also not stated by her that the accused had said that he would not take food prepared by her.

13. The learned Counsel appearing on behalf of the appellant has urged before us that in view of the omissions in the statement of P.W. 6 Onkar in respect of the alleged oral dying declaration made by Vimal to him, no reliance can be placed on his testimony. The statement of P.W. 6 Onkar came to be recorded on 19.1.2003, i.e. after three days of the incident. P.W. 6 Onkar states that he had been to the police station on 17.1.2003 and the police had recorded his statement. Similarly, it is also urged before us that looking to the omission in respect of the dying declaration alleged to have been made by Vimal to P.W. 3 Suman in the jeep, no reliance at all can be placed on the evidence of P.W. 3 Suman. The omissions have been duly proved through the evidence of P.W. 10 P.S.I. Pawar in his cross-examination and there is a total omission about the alleged dying declaration made by Vimal in the jeep. That apart, Suman's statement, according to her, came to be recorded after death of Vimal. There is a Police Chowki in village Pal and it is not explained by P.W. 3 Suman as to why a report was not immediately lodged. P.W. 3 Suman was available in the hospital and there was no impediment for police to record her statement. Apart from this, Rahul, son of Vimal, was an eye-witness to the incident and his statement came to be recorded by police. He was also cited as a witness. For reasons which are not forthcoming, Rahul, who was an eye-witness to the incident, has not been examined. For all these reasons, according to us. it would be highly unsafe to place any reliance on the oral dying declaration alleged to have been made by Vimal to P.W. 3 Suman and P.W. 6 Onkar.

14. After giving our anxious consideration to the material on record, according to us, prosecution has not been able to establish the offence against the accused beyond the reasonable doubt and the accused is entitled to be acquitted. Accordingly. Criminal Appeal No. 776 of 2003 is allowed. The conviction and sentence of the appellant is hereby quashed and set aside and he is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant, be refunded to him. Since the appellant is in jail he be released forthwith, if not wanted in any other case.