Bombay High Court
Nirmala Maruti Gunjal vs The State Of Maharashtra on 7 December, 2011
Bench: V.M. Kanade, A.M. Thipsay
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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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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.
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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
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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
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(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
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(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
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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
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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
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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 :
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"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
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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
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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
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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
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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
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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
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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."
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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
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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
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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
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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
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(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
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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
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(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
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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
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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
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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
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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,
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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
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(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)
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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,
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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.)
