Age 40 Years vs The State Of Maharashtra
2011 Latest Caselaw 270 Bom

                                                                            apl356.11
                                      -1-




                                                                          
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                           BENCH AT AURANGABAD




                                                  
                     CRIMINAL APPEAL NO. 356 OF 2011


     1     Chandar s/o Laxman Rakhunde




                                                 
           Age 40 years, Occ. Labourer,

     2     Shobha w/o Chandar Rakhunde
           Age 40 years, Occ. Labourer,




                                    
           Both R/o. Anildada Nagar,
           Dhule Road, Chalisgaon,
           District Jalgaon
                       ig                                  ...Appellants


           Versus
                     
     The State of Maharashtra
     Through, P.S.I. Chalisgaon Police
     Station, Chalisgaon, Dist. Jalgaon                    ...Respondent
      
   



                                    .....
     Mr. Joydeep Chatterji, counsel i/b Mr. P.B. Patil, advocate for the
     appellants
     Mr. V.D. Godbharle, APP for respondent-State





                                    .....


                                             CORAM : S. B. DESHMUKH AND
                                                     A.M. THIPSAY, JJ.





                                          DATE OF RESERVING
                                          THE JUDGMENT                : 15.12.2011


                                          DATE OF PRONOUNCING
                                          THE JUDGMENT        : 23.12.2011


     JUDGMENT (PER A.M. THIPSAY, J.)

1 The appellants were the accused Nos. 1 and 2 in Sessions

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Case No. 125 of 2007, in the Court of Sessions at Jalgaon. The

allegation against them was that they had committed offences

punishable under section 498-A of I.P.C. and section 302 of I.P.C. r.w.

Section 34 of I.P.C. The learned Additional Sessions Judge, after

holding a trial, found them guilty of an offence punishable under

Section 302 of I.P.C. r.w. Section 34 of the I.P.C. and sentenced both

of them to suffer imprisonment for life and to pay a fine of Rs.1000/- in

default to suffer R.I. for two months. The appellants were, however,

acquitted of the offence punishable under Section 498-A of I.P.C. r.w.

Section 34 thereof.

2. The appellants, being aggrieved by their conviction, with respect

of the offence punishable under Section 302 of I.P.C. r.w. Section 34

of I.P.C., have approached this Court by filing the present appeal.

3. The prosecution case before the trial court, was, in brief, as

follows:-

a. Ujwala, the daughter of Tolabai (P.W.3), married Deepak,

the son of the appellants, some time in the year 2006. After her

marriage, Ujwala had been residing with her husband Deepak

and the appellants, in the matrimonial house at Chalisgaon.

That, the appellants used to insist that Ujwala should bring Rs.

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10,000/- from her parents for purchase Auto Rickshaw for

Deepak. As this demand of money was not being met, Ujwala

was being treated with cruelty by the appellants.

b) That, on 6.3.2007, the naming ceremony of the son of

Ujwala's maternal uncle was to take place at Nashik. Ujwala's

mother Tolabai, therefore, had gone to Chalisgaon to take

Ujwala to Nashik to attend the said ceremony. However, the

appellants refused to send Ujwala to Nashik and therefore,

Tolabai alone returned back to Nashik. One Jijabai Bodke (P.W.

9), a relative of Tolabai, however, stayed in the house of the

appellants at Chalisgaon.

c) That, on 7.3.2007, at about 10.00 a.m., one Suresh Fasge

of Devlali, came to the house of Tolabai (P.W.3) and informed

her that he had received a telephonic message from Chalisgaon

that Ujwala had suffered burn injuries in her matrimonial house

and that she was admitted in the Civil Hospital, Dhule. Tolabai,

her son-Sonu (P.W.4) and other relatives rushed to Dhule and

met Ujwala, who was undergoing treatment in the burn ward of

the said Hospital. Tolabai asked Ujwala as to how she had

sustained the burn injuries, when Ujwala told her that as the

appellants had refused to send her with Tolabai for going to

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Nashik, she was weeping. It was at about 5.30 a.m. That, her

husband Deepak and the appellants came towards her and

asked her as to why she was not bringing money from her

parents and why she was weeping. The appellants and Deepak

abused and assaulted Ujwala. The appellant No.2 Shobha

brought kerosene bottle from inside the house and poured the

same on the person of Ujwala. At that time, Deepak had held

Ujwala. The appellant No.1 lighted a matchstick and threw the

same on the person of Ujwala and that is how Ujwala caught fire

and sustained the burn injuries.

d) On the next date, Tolabai lodged a report with the

Chalisgaon police station, which was recorded by API, Suresh

Jadhav (P.W.8), It was treated as the First Information Report

and on that basis, a case in respect of an offence punishable

under Sections 307, 498-A, 323, 504, 506 r.w. Section 34 of

I.P.C. was registered against the appellants and the said

Deepak. Investigation was carried out by API Suresh Jadhav

(P.W.8) who went to the spot and prepared spot panchnama.

Burnt saree, brassiere, blouse, kerosene bottle and one match

box, that were found on the spot, were seized under the

panchnama (Exh.41).

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e) The statements of several persons were recorded in the

course of investigation. All the three accused i.e. The present

appellants and the said Deepak were arrested on 10.3.2007.

f) Ujwala succumbed to the burn injuries on 14.3.2007.

Thereafter, the accusation of an offence punishable under

Section 302 of I.P.C. also came to be levelled against the

accused persons.

g) Post mortem examination was conducted on the dead

body of Ujwala. The seized articles were sent to Chemical

Analyzer alongwith a Lady police Constable Smt. Bhavsar (P.W.

7) on 19.3.2007. Memorandum of post mortem examination

(Exh.42) was collected in the course of investigation.

4. On completion of investigation, a charge sheet was filed,

pursuant to which the appellants were tried. As aforesaid, the trial

resulted in their conviction.

5. It appears that, as the son of the appellants, Deepak (husband

of Ujwala) was a juvenile, his trial was separated. The appellants were,

thus, the only accused in the said Sessions Case.

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6 The prosecution examined totally nine witnesses during the trial.

Veersing Gavit (P.W.2), Executive Magistrate, is the one, who had

recorded a statement of Ujwala, which was tendered in evidence as a

dying declaration (Exh.17), made by Ujwala. P.W.1 Dr. Prashant

Deore, who was attached to the Civil Hospital, Dhule, at the material

time, is the one, who had examined Ujwala and given his opinion

about her health condition to Gavit (P.W.2), before Gavit recorded her

statement. The 3rd witness, it may be recalled, is the first informant

Tolabai and the 4th witness is Sonu,-brother of Ujwala. The 5th

witness, Somnath Gaikwad, is a panch in respect of the spot

panchnama (Exh.30) but he did not support the prosecution and was

declared as hostile. The 6th witness, Santosh Jadhav, is also a panch

witness in respect of another panchnama (Exh.32), but he also did not

support the prosecution case and was declared hostile. The 7th

witness, Smt. Sharda Bhavsar, it may be recalled, is the lady police

constable, who had taken the seized articles to the Chemical

Analyzer's office at Nashik on 20.3.2007. The 8th witness, Suresh

Jadhav, is the investigation Officer and the 9th witness, Jijabai Bodke,

a relative of Tolabai, is supposed to be an eye witness to the incident

of setting Ujwala on fire. Jijabai, however, did not support the

prosecution case and was declared as hostile.

7. We have heard Mr. Joydeep Chatterji, the learned counsel for

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the appellants and Mr. Godbharle, the learned APP for the

respondent-State. With the assistance of the learned counsel, we

have gone through the entire evidence, the impugned judgment and

other relevant record.

8. That, Ujwala had caught fire, sustained burn injuries and that

she succumbed to the burn injuries is not in dispute at all. The notes

of the post mortem examination (Exh.42) show that Ujwala had

sustained 90%, superficial to deep, burn injuries and that the probable

cause of her death was opined as 'septicemia following thermal burns'.

Thus, that Ujwala died an unnatural death due to the burn injuries, is

satisfactorily established. The only question is whether the appellants

(and the said Deepak) had set her on fire, as per the case of the

prosecution.

9. The case against the appellants is based only on the dying

declarations, said to have been made by Ujwala. Ujwala is said to

have made a dying declaration to Tolabai and Sonu, which was not

recorded by them. In their evidence, however, they stated as to what

Ujwala stated to them. It may be recalled, that another dying

declaration made by Ujwala to Veersing Gavit (P.W.2), was reduced to

writing (Exh.17) by him.

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10. The main contention advanced by Mr. Chatterji, the learned

counsel for the appellants, is that, apart from the dying declaration of

Ujwala recorded by Gavit, two more dying declarations of Ujwala were

recorded-one by the Executive Magistrate Shri Thakur and the other

by a police Officer from Dhule police station. He submitted that, the

dying declaration of Ujwala recorded by the Executive Magistrate Shri

Thakur, was produced before the court, marked, and exhibited (Exh.

20). He pointed out that the dying declaration recorded by a police

Officer from Dhule police station, was also produced before the Court

and marked as Article "A". He submitted that in these two dying

declarations, Ujwala had given a version of she having caught fire

accidentally. He submitted that, the trial court only considered the

dying declarations said to have been made by Ujwala to Tolabai and

Sonu and the dying declaration (Exh.17) recorded by the Executive

Magistrate, Gavit, which implicated the appellants and the said

Deepak. According to him, when there were conflicting dying

declarations, the trial court could not have placed reliance on the dying

declaration (Exh.17) recorded by Mr. Gavit and the oral dying

declaration made to Tolabai and Sonu.

11. As against this, Mr. Godbharle, the learned APP for the

respondent-State, submitted that the dying declarations at Exh.20 and

Article 1, were not proved to have been made by Ujwala. He

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submitted that neither Thakur was examined as a witness nor the

police officer, who recorded the declaration marked Article "A". He

submitted that, therefore, the trial court had not taken those

declarations into consideration and that, the view of the trial court in

that regard was proper and legal.

12 Apart from the contention that the fact of Ujwala having made

dying declaration to the Executive Magistrate Thakur and to the police

from Dhule, should have been taken into consideration, it is also

contended by the learned counsel for the appellants that even the

dying declaration (Exh.17) made to Gavit and the oral dying

declaration made by Ujwala to Tolabai and Sonu, are not consistent.

According to him, the version in these dying declarations was not

uniform and that, even if only these dying declarations were to be

taken into consideration, it would be difficult to base a conviction

thereon, in the absence of any other evidence against the appellants.

13. For the time being, we may keep aside the dying declaration

recorded by the Executive Magistrate Shri Thakur and the dying

declaration recorded by the police from Dhule police station, as the

question whether they can be looked into for ascertaining what was

the version of Ujwala, as reflected therein, or for any other purpose, is

of some importance, needing discussion on principles of criminal

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jurisprudence and related legal aspects. We may, therefore, first

examine the dying declaration recorded by Mr. Gavit (Exh.17) and the

oral dying declaration made by Ujwala to Tolabai and Sonu.

14. In the dying declaration made to Gavit (P.W.2), Ujwala has not

implicated her husband Deepak, at all. Undoubtedly, Ujwala did

implicate the appellants by giving specific roles to them viz. the role of

bringing kerosene bottle and pouring the kerosene therein on the

person of Ujwala to the appellant No.2-Shobha, and the role of lighting

the matchstick and setting her on fire to the appellant No.1-Chandar.

Ujwala also stated that her grand-mother, Jijabai extinguished the fire.

She specifically stated, that her complaint was against her mother-in-

law - Shobha-the appellant No.2 and her father-in-law - Chander-

appellant No.1.

15. As regards the dying declaration made to Tolabai, Tolabai

stated that, she, her sister and her son, went to the Civil Hospital on

learning about the incident from Suresh Fasge and that on going there,

she asked Ujwala as to how she had suffered the burn injuries.

According to her, Ujwala told her that her (Ujwala's) mother-in-law had

poured kerosene on her (Ujwala's) person and her (Ujwala's) father-in-

law, had set her on fire. Ujwala also told Tolabai that she was set on

fire by her in laws, because Ujwala's parents had failed to pay them

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cash amount as per the demand of the appellants. Now, in this dying

declaration also, Ujwala did not implicate her husband Deepak.

16. The version of Ujwala's brother-Sonu (P.W.4) regarding the

Ujwala's dying declaration is different. It appears from the evidence of

Sonu that Ujwala made a oral dying declaration to Tolabai, when

Tolabai and this witness were altogether. Thus, the dying declaration

of Ujwala, which is spoken about by Tolabai and Sonu appears to be

one and the same. However, the version of Tolabai and Sonu, as to

what Ujwala stated, is not the same. According to Sonu, Ujwala

implicated her husband also, and that she told that her husband

Deepak-had caught hold of her when her mother-in-law (appellant No.

2) had poured kerosene on her person and her father-in-law (appellant

No.1) had set her on fire. Sonu attributed to Ujwala, statements

containing details which Tolabai never mentioned in her evidence.

According to Sonu, Ujwala also stated that she was threatened by her

in laws that she should not disclose the incident to police, otherwise,

the in-laws would kill Sonu and Tolabai; and that Ujwala was also

threatened by her in-laws that she would not be given medical

treatment by them in case she disclosed the incident to the police.

Now, this statement of Ujwala :- viz-about the threats given by in-laws

is not found in the evidence of Tolabai. If Tolabai and Sonu are both

speaking about the same dying declaration, which appears to be the

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case, the omission of Tolabai to state about these details is significant

and needs to be taken into consideration while appreciating the

evidence of Sonu. If, on the other hand, it is assumed that Tolabai and

Sonu are speaking about two different dying declarations, then it would

mean that there were variations in the statements made by Ujwala and

that there were gradual improvements in her statement.

17. Since the evaluation of a dying declaration would depend on

how reliable the witnesses, who say that such a declaration was made

to them, appear to be, a deeper scrutiny of the evidence of Executive

Magistrate Gavit (P.W.2) and the evidence of Tolabai (P.W.3) and

Sonu (P.W.4) becomes unavoidable.

18. Tolabai (P.W.3), in her evidence, has stated about the demand

by the appellants to Ujwala for an amount of Rs.10,000/-, to be

brought from the parents of Ujwala for enabling Deepak to purchase a

Rickshaw. She has mentioned that she had gone to Ujwala's house at

Chalisgaon and that the appellants refused to send her with Tolabai to

Nashik. Tolabai states that, at that time, the appellants threatened her

(and also Jijabai, P.W.9) that they would set Ujwala on fire, if the

money was not paid to them by Tolabai and her husband. She also

speaks of Ujwala having told her that she (Ujwala) was set on fire by

her in laws, as Ujwala's parents (i.e. Tolabai and her husband) had

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failed to pay cash amount to the appellants as per their demand.

However, Tolabai did not lodge any report with the police immediately

but waited till the next date. In the cross examination, it was revealed

that the marriage between Ujwala and Deepak was settled by

Tolabai's maternal uncle Chinga, acting as a middleman. Tolabai

however, said that she did not disclose to Chinga, at any time, that

Ujwala was being subjected to cruelty by her in-laws. It is also

revealed that Tolabai stayed in the house of the accused persons

throughout the day of 5.3.2007 and also in the night. It is also

revealed that the said Chinga was also present at Chalisgaon on

5.3.2007.

19. The conduct of Tolabai in not reporting the matter to the police

immediately on learning about the incident from Ujwala and her non

mentioning to Chinga about the harassment caused to Ujwala by the in

laws, is not natural. It is difficult to believe that the appellants would

threaten Tolabai on 5.3.2007 that if the money would not be paid to

them, they would set Ujwala on fire and it is still more difficult to

believe that Tolabai still would not do anything about it and even would

not report this to Chinga - if not to the police. It is difficult to believe,

that in spite of such threats, Tolabai would calmly go back to Nashik,

leaving Ujwala in the danger of being killed.

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20. Tolabai admitted in the cross examination that the dying

declaration recorded by Gavit was at her instance and also admitted

that she was aware that the statements of Ujwala were recorded by

the Executive Magistrate and by the police before that. However,

inspite of this, she denied that she was aware that Ujwala had made a

statement that she had caught fire accidentally. It is difficult to believe

this denial as true. When she was aware that two statements of

Ujwala were recorded,--one by the police and one by an Executive

Magistrate--and when she insisted on recording another statement of

Ujwala, as admitted by her, it is obvious that she did so, because she

was not satisfied with the earlier statements of Ujwala, as were

recorded. It is a matter of common sense that without knowing the

contents of those statements, she could not have insisted on getting

another statement of Ujwala recorded.

21. After carefully considering the evidence of Tolabai, it does not

appear that she can be trusted as a wholly reliable witness, so that her

evidence could be accepted without feeling the necessity of any

independent corroboration.

22. Coming to the evidence of Sonu (P.W.4), it may be recalled that

he has said about Ujwala having made certain statements, which

Tolabai had not said, as having been made by Ujwala. According to

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him, Ujwala also told him and others that she was threatened by her

in-laws that she should not disclose the incident to the police, as,

otherwise they (in-laws) would kill her brother and Tolabai.

Interestingly, in his statement recorded by the police, this part is

missing. It is further interesting to note that the Investigating Officer,

Suresh Jadhav (P.W.8), claimed that Sonu had stated him so, though

it did not appear in the record of Sonu's statement, made by him in the

course of investigation. It is not possible to accept that Sonu had

indeed told so to P.I. Jadhav. Had it been told, Jadhav would not have

failed to record the same. It is because this statement viz. that Ujwala

was threatened by the accused persons that she should not disclose

the real incident as otherwise her parents would be killed, was very

significant and provided a reason for earlier giving a history of

accidental fire. That, this aspect is crucial, is known to Sonu, is clear

from the fact that he said so in his evidence. The Investigating

Officer's claim that Sonu had said so, though it does not find place in

the record of Sonu's statement made by the Investigating Officer, is

nothing but a feeble attempt to overcome the effect of this omission on

the reliability of this part of Sonu's evidence and exposes the

Investigating officer and indicates that he is determined to support the

prosecution version, as put forth, at any cost. The Investigating Officer

has gone to the extent of exposing himself to a possible criticism of

having failed to record a vital aspect, in the statement of a crucial

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witness. Be that as it may, the 'memory' of the Investigating Officer

cannot be trusted in the absence of a contemporaneous record

corroborating his claim. If the investigating officer did not record this in

the statement of Sonu, though Sonu had stated so, the reason could

be that it was thought to be insignificant by him; and if at that time he

did not think it significant, there was no special reason for him to

remember while giving evidence, that Sonu had stated so to him.

Considering this, it is difficult to rely on this part of Sonu's evidence.

23. Dying declaration is a statement of a person, who is dead and

therefore, cannot be examined as a witness. The truth of the statement

can be vouched only by that person i.e. the declarant and not by the

witness to whom it was made. The witnesses can only say that such a

statement was made by the dying person. Therefore, to hold a dying

declaration as reliable, the Court must be satisfied regarding two

aspects, viz, that witnesses, who say that the deceased made a

particular statement are reliable and trustworthy, and further, the

version of the deceased, as reflected in the said statement i.e. dying

declaration, is also reliable and trustworthy. In case of oral dying

declaration, of which no record has been made by the concerned

witness, it would be still more difficult to place implicit reliance on the

dying declaration, because the accuracy of the statement, made by the

deceased, may be affected in the re-production of it, by the witnesses.

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24. In this case, Tolabai and Sonu are the near ones of Ujwala and

obviously they had overcome by a feeling of shock and grief because

of unnatural death of Ujwala. It would be a natural reaction on their

part to try to put forth some explanation as to how the things had

happened. If all these factors are taken into consideration and their

evidence is analyzed on an objective basis, it would be difficult to

believe that what they have said, must be true. There is therefore, a

need to see whether their evidence is corroborated by some other

independent evidence.

25. Coming to the dying declaration recorded by Gavit (Exh.17), it

has been noticed, that it materially differs from the oral dying

declaration said to have been made by Ujwala to Tolabai and Sonu. In

this dying declaration, Ujawala did not mention anything about the

demand of money by appellants, which was supposed to be the cause

for setting her on fire, as per the version projected by Tolabai. Apart

from the fact that it materially differs from the dying declaration made

by Ujwala to Tolabai and Sonu, there are also some other infirmities in

the evidence regarding that. Admittedly, this dying declaration came

to be recorded in peculiar circumstances : viz-after two dying

declaration-one by Thakur and the other by policeman from Dhule

Police Station-had been recorded and after Tolabai had demanded,

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being dissatisfied with those dying declarations, that another may be

recorded. This was disclosed to Gavit, and it was quite obvious to him

as to what type of dying declaration would satisfy Tolabai and the

investigating agency. Though this by itself, would not mean that Gavit

recorded a dying declaration falsely, this aspect needs to be taken into

consideration while appreciating evidence in respect of the dying

declaration recorded by him.

26.

In his cross examination, Gavit claimed that he had put a

question to Ujwala, whether her dying declaration had been recorded

prior to the statement, which Gavit was going to record. He also said

that Ujwala disclosed about recording of one dying declaration prior to

it. He however, had to admit that he had not mentioned about this; viz.

about the first dying declaration, in the dying declaration (Exh.17)

recorded by him. He also had to admit that the questions and answers

about the previous dying declaration are not recorded in the dying

declaration (Exh.17) recorded by him. Gavit, who was expected to

record the dying declaration truthfully and accurately, has not thought

it fit to clarify why he did not record it verbatim. Moreover, it does not

stand to reason that Gavit would ask Ujwala about a previous dying

declaration, which would indicate his awareness of the importance of

that aspect, but would still fail to record the same and the answer

thereto, though he was supposed to record the statement accurately.

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27. There is also doubt about the mental and physical condition of

Ujwala, when this dying declaration came to be recorded. According

to Deore (PW-1), sedatives are given to patients, though only after

their statements are recorded; and though he denied that any

sedatives had been given to Ujwala, such a possibility is apparent, in

view of the fact that not one, but two statements of Ujwala had already

been recorded. There was no reason for the doctors attending to

Ujwala to know at that time, that yet another statement of Ujwala was

to be recorded, so as to abstain from administering sedatives to

Ujwala.

28. In our opinion, the evidence in respect of the dying declarations

made to Tolabai and Sonu by Ujwala and the dying declaration made

by her to Gavit is not of such a quality that it can be acted upon without

any corroboration or that the appellants can be convicted only on the

basis of the dying declarations in question. These dying declarations

came to be made under circumstances which are suspicious.

However, that is not crucial aspect of this case. It is not in dispute that

two more dying declarations were made by Ujwala and both of them

were reduced to writing - one by the Executive Magistrate Shri Thakur

(Exh.20) and the other police from Dhule police station (Article A). The

prosecution did not think it necessary to examine the concerned

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witnesses and prove these dying declarations as the version of Ujwala.

It appears that the version in those dying declarations was quite

different and Ujwala had said therein that she had caught fire

accidentally.

29. Mr. Chatterji, the learned counsel for the appellants, submitted

that the prosecution was not entitled to keep back these dying

declarations, as they were also relevant in determining the guilt or

innocence of the appellants. He submitted that it was not proper on the

part of the trial court to have ignored these two dying declarations, and

that alongwith the dying declarations made to Gavit, Tolabai and Sonu,

these two dying declarations also ought to have been taken into

consideration.

30. We have carefully considered the matter. Indeed, what was

stated by Ujwala to Thakur, could be proved only by Thakur or by

someone, who had heard Ujwala making the said statement.

Similarly, what was stated by Ujwala to the concerned police man from

Dhule police station, could be said only by concerned policeman or

any other person, who had heard the same. Thus, from this point of

view, it is true that the version of Ujwala, as reflected in those dying

declarations could not be said to have been proved inasmuch as, it

was not proved that Ujwala had indeed said so.

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31. What however, cannot be overlooked is that, that two

statements of Ujwala were recorded prior to her making a declaration

before Tolabai and Sonu and before her statement was recorded by

Gavit (P.W.2), had been satisfactorily proved. Dr. Deore (P.W.1),

admitted that Ujwala's statement was recorded by a Magistrate, prior

to the recording of her statement by Gavit. Deore also admitted that

even the police had recorded Ujwala's statement before that. He also

said that, said two statements were recorded in presence of concerned

Medical Officer. In fact, that the casualty Medial Officer, who had

given treatment to Ujwala, was present at the time of recording of said

two previous dying declarations (Article A and Exh.20), had been given

by him as a reason for his not remaining present at that time.

32. Even Gavit has admitted that Ujwala's dying declaration had

been recorded before he recorded her statement (Exh.17). In fact, he

claimed that Ujwala herself stated so. He also admitted that police had

told him that it was due to the complaint of Ujwala's mother that Gavit

had to record her dying declaration, though previously one had been

recorded. The dying declaration recorded by Thakur was brought on

record through this witness, who identified the signature of Thakur,

whereupon the said dying declaration came to be marked as Exh. 20.

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33. Even Tolabai had admitted that the statements of Ujwala had

been recorded by police and the Executive Magistrate before she told

about the incident to Tolabai and Sonu; and that she (Tolabai) was

aware of that. She also admitted that still she insisted on recording

another statement of Ujwala.

34. The evidence of Sonu indicates that he was also aware of the

fact that statement of Ujwala had been previously recorded.

35. Even the Investigating Officer clearly admitted that Ujwala's

statement (Exh.20) was recorded by a Special Executive Magistrate

from Dhule and that he had seen from the investigating papers that her

statement (Article A) was also recorded by Dhule police.

36. Thus, that Dhule police had recorded Ujwala's statement and

the Executive Magistrate, Thakur, had also recorded her statement

and that too in the presence of Medical Officer, is not in dispute at all.

Rather, it is an admitted position. That, the Investigating Officer was

aware of these statements and they were included in the investigating

papers is also an admitted position.

37. A reference may also be made to the documents at Exh.15 and

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16 and also the document at Exh.19. These documents are the own

documents of the prosecution and were received in evidence without

any objection or protest. The genuineness of these documents is not in

dispute. The documents at Exh.15, is a carbon copy of Exh.16,

purporting, to be a communication to the Executive Magistrate by the

Officer in charge of Dhule city police station, conveying the information

that 'though the dying declaration of Ujwala had been recorded, since

the mother of the patient had insisted on recording the dying

declaration, dying declaration may be recorded afresh'.

38. In these circumstances, the question, as to whether the

contents of the dying declarations at Exh.20 and Article A, or any of

them, could be read in evidence recedes in the background, and what

assumes significance is that, admittedly two other dying declarations

were made by Ujwala before her dying declaration (Exh.17) was

recorded by Gavit and before Ujwala had made an oral dying

declaration to Tolabai and Sonu. It is also clear, that Tolabai was not

satisfied with those dying declarations. It is also clear, that no offence

was registered on the basis of such previous dying declarations. It is

also clear, that Investigating Officer had seen those dying declarations,

which were included in the investigation papers. Not only that, the

investigating officer has admitted that statement of Ujwala recorded by

Dhule police (Article A) indicated that Ujwala stated that she had

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suffered burn injuries while heating water on hearth. Thus, the

Investigating Officer was, admittedly, aware that Ujwala had earlier

given a different version of the incident, not only to the police, but also

to the Special Executive Magistrate. The Investigating Officer, for

some reason, decided to discard those statements of Ujwala, and

accept only the statements, said to have been made to Gavit and to

Tolabai and Sonu. No reasons were indicated for discarding the

previous two dying declarations.

ig The Investigating Officer did not

record the statement of concerned policeman from Dhule police station

or the statement of Executive Magistrate Shri Thakur, before

discarding the statements made by Ujwala to them. Though Ujwala

was alive till 14.3.2007, the investigating Officer did not, admittedly,

make any attempt to record her statement for getting the inconsistency

in her different statements clarified.

39. In our opinion, in the first place, the prosecution was not entitled

to hold back the dying declarations of Ujwala, recorded by Dhule

police and by the Executive Magistrate, Thakur and in the second

place, to claim that 'their contents were not duly proved', when the

defence managed to bring these documents on record. These

documents which were supposed to be the records of what Ujwala had

stated to the policeman and the Executive Magistrate, were not the

creation of the accused persons. These documents were the

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documents of the investigating agency and it cannot lie in the mouth of

the investigating agency and/or the prosecuting agency, that the

'contents thereof were not proved'. The accused had never disputed

the correctness of the contents thereof, needing proof.

40. In Bhairath Bhaurao Kanade Vs. The State of Maharashtra

(Criminal Appeal No. 695 of 1982, decided on 22.07.1996), a similar

question arose for the consideration before a Division bench of this

Court. In that case, there was a plurality of dying declarations and one

of the dying declarations, contained in the medical case papers, was

conflicting with the dying declaration recorded by the Magistrate. When

the appellant in that case wanted to take benefit of the dying

declaration recorded in the medical case papers to claim that the

version in other dying declarations recorded by the Magistrate may not

be believed, it was contended that dying declaration contained in the

medical case papers was not satisfactorily proved, inasmuch as, it was

made to one Dr. Patil, who was not examined as a witness. This court

held that under the circumstances, it was incumbent on the part of the

prosecution to have examined Dr. Patil and have questioned him as to

whether he had made entries on the basis of the information given by

the patient, or on the information given by the appellant, or whether

there was any other error in that entry.

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41. The principle laid down in Bhairath Kanade's case (supra) was

relied upon by another Division bench of this Court (of which one of

us-A.M. Thipsay, J-was a member) in criminal appeal no. 277 of 2011

decided on 14.11.2011. It was observed that the prosecution cannot

prevent the court from considering that as per the prosecution case

itself, the earliest information about the incident, as was received by

the Investigating Agency from the victim, was different from what was

subsequently received from the victim.

42. The only effect of not having proved the version of Ujwala, as

reflected in Exh.20 or Article A, would be that it would not be possible

to claim that such a statement was, in fact, made by Ujwala. It is true

that the information contained in Exh.20 or Article A, could be

incorrect, or might not have been given by Ujwala at all; but one

cannot lose sight of the fact that it was necessary to examine this

aspect in the course of investigation. When material, which was in

conflict with the version in Exh.17 and the version of Tolabai and Sonu

was available with the investigating agency, the Investigating Officer

was expected to go deeper and ascertain which, if any, of the

conflicting versions was true.

43. In the prosecution of offenders, the investigating agency and the

prosecution is expected to act fairly. It is not expected of the

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Investigating Officer only to believe the material, which would be

against the accused; and to ignore the material, which would be

favourable to the accused, even though during investigation he comes

across such conflicting material. In such a situation, he has to form an

opinion as to the truth of the matter, before arriving at a conclusion.

44. In Samadhan Dhudaka Koli Vs. State of Maharashtra (2009

All MR (Cri.) 229 (.S.C.), the Supreme Court of India had an occasion

to consider the effect of suppression of a dying declaration. In that

case, the declarant had initially made a statement that she had

suffered burn injuries by reason of accident. This statement was

recorded by a Judicial Magistrate. The said dying declaration was

however, suppressed by the prosecution and the accused were being

prosecuted on the basis of another dying declaration, in which the

declarant had implicated them. The dying declaration, which gave a

history of accidental burns, was suppressed by the prosecution. The

appellant before the Supreme Court - the husband of the victim in that

case, had been convicted on the basis of the dying declaration

implicating him. Their Lordships of the Supreme Court did not approve

this and observed as follows:-

"Prosecution must also be fair to the accused. Fairness in investigation, as also trial, is a human right of an accused. The State cannot suppress any vital document from the

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court only because the same would support the case of

the accused."

45. In our opinion, when the evidence on record clearly established

that, Ujwala had made two dying declarations, before making the dying

declaration to Mr. Gavit (P.W.2) and to Tolabai and Sonu and when

the evidence showed that the Investigating Agency was aware of the

said previous declaration and also of the fact that those declarations

did not implicate the appellants, the prosecution cannot be heard to

say that the previous two dying declarations cannot be looked into by

the Court, on the claim that the contents thereof had not been proved.

It is one thing to claim that the contents of the dying declaration

recorded by Thakur and by the Policeman from Dhule Police Station,

cannot be read for the proof of the fact that Ujwala indeed made such

statements, but it is quite another to claim that even the fact that

previously two dying declarations, which were inconsistent with the

dying declaration recorded by Gavit and the dying declaration made to

Tolabai and Sonu had been made by Ujwala should not be taken into

consideration for the limited purpose of evaluating the dying

declarations implicating the appellants. In a criminal prosecution, the

burden of proving the guilt of the accused is on the prosecution, and

the prosecution would fail if the accused would be able to create a

reasonable doubt as regards his guilt, on the basis of evidence on

record. If this position is kept in mind, it becomes clear that it may not

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be essential for an accused, to prove the contents of the dying

declarations favourable to him in a given case, and it may be sufficient

for him only to establish that there were other dying declarations,

which were inconsistent with dying declarations that are being relied

upon by the prosecution, and that the prosecution is avoiding to bring

those dying declarations on record, or to prove them. It all depends on

the facts of each case. In the instant case, failure of the appellants to

prove what Ujwala had stated to Thakur and to the said Policeman is

not fatal to them inasmuch as that, different versions as to how she

had caught fire, (which versions were not consistent with one another)

had been given by Ujwala, was not in dispute. Thus, what exactly

Ujwala stated to Thakur, and/or to the Policeman, from Dhule Police

Station, has not been proved but that, she made some statements

before them and that, they were not consistent with the statements,

which she is supposed to have made before Gavit (P.W.2), Tolabai

and Sonu subsequently, had been satisfactorily proved.

46. Even if, the version of Ujwala, as reflected in Exhibit-20 and

Article `A', had not been proved, the fact remains that the following

was satisfactorily proved from the evidence adduced before the trial

Court:-

i. Before making the dying declarations on which prosecution had placed reliance to implicate the appellants, Ujwala had made at least two dying declarations-one before the Special

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Executive Magistrate Thakur and the other before the

Policeman from Dhule Police Station.

ii. The version in those dying declarations was different from the version in the dying declarations relied upon by the prosecution.

iii. Though the Investigating Officer noticed that there were conflicting versions of Ujwala, as reflected from the material collected in the course of investigation, he made no attempts to verify the correctness or falsity, as the case may be, of the previous conflicting statements.

iv. Prosecution declined to put forth the version of Ujwala in the

said two previous dying declarations. Consequently, it also failed to indicate, or even claim that the dying declarations relied upon by it should be preferred over the previous dying

declarations.

v. No crime was registered on the basis of the said two previous dying declarations, or any of them.

vi. It is because Tolabai was not satisfied with the version reflected in the previous two dying declarations, she insisted on recording another and that, it is pursuant to that insistence that, the dying declaration came to be recorded by Gavit.

47. These facts, which can be gathered from the evidence, without

even touching the question of contents of the dying declarations at

Exhibit-20 and Article `A', are sufficient to cast serious doubts on the

veracity of the dying declarations that were relied upon by the

prosecution.

48. Apart from the reliability of the evidence of persons who are

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witnesses to dying declaration, the reliability of the version of the

maker also would be open for examination and scrutiny. It may be

observed that the maker of a dying declaration is not exempt from the

attack that might be made on his version, had he appeared as a

witness, and advanced such version. Section 158 of the Evidence Act

exposes the statements relevant under Section 32 or 33 of the

Evidence Act to the same attack as might be made on the statements

of a witness. Showing that a witness had formerly made statements

inconsistent with the statements made by him in his evidence, is a

permissible mode of discrediting such witness and thereby casting a

doubt on the veracity of his evidence. The same principle, which is

based on reason and logic applies even to the statements under

Section 32 of the Evidence Act and this is clearly recognized by

Section 158 of the Evidence Act. Inconsistent or conflicting dying

declarations, therefore, should put the Court on guard and where there

would be no material to show why any particular dying declaration or

declarations, is or are, to be preferred over any other or others, it may

not be possible to form a belief about the truth of the version in any of

such dying declarations.

49. A perusal of the judgment delivered by the learned Additional

Sessions sssJudge shows that the learned Judge accepted the fact

that Ujwala had made a dying declaration (Exh.20) recorded by

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Executive Magistrate Shri Thakur and that the said dying declaration

was inconsistent with the dying declaration recorded by Gavit and the

dying declaration spoken about by Tolabai and Sonu. He however,

held that the said dying declarations `had not been duly proved, as the

Medical Officer, who examined Ujwala had not been examined by the

prosecution.' He also observed that the Executive Magistrate Shri

Thakur was not examined by either by the prosecution or by the

defence. Strangely, however, he still took the same into consideration

and concluded that the dying declaration (Exh.20) was a result of the

pressure exercised by the appellants. He held that, that statement

was neither voluntary nor truthful. We see no basis for the conclusion

that Exh.20 that Ujwala's version reflected in Exh.20 was neither

voluntary or truthful, when neither Shri Thakur nor the Medical Officer,

who had made endorsement on Exh.20, were examined. There was

no evidence or other means for judging the evidentiary value of the

said statement. Moreover, it was not the case of the investigating

officer also, that the earlier dying declarations were wrong or

inconsistent and though Ujwala was alive till 14.3.2007 and though

conflict in her versions was noticed by the investigating officer, he,

admittedly, did not seek to get the matter clarified by examining

Ujwala, or at least by examining Shri Thakur and the concerned

Medical Officer. Thus, the conclusion about unreliability of the dying

declaration at Exh.20, was arrived at by the learned Additional

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Sessions Judge, not only without any evidence whatsoever, but even

without a bare claim to that effect of the investigating agency also.

50. The learned Additional Sessions Judge discussed the version of

Ujwala, as reflected in the dying declaration at Exh.20, which was to

the effect that Ujwala had for boiling water put fire wood in the hearth

and that while sprinkling kerosene on the fire wood, her clothes caught

fire, and observed that Ujwala had suffered 18% burn injuries on her

back and concluded that it was not possible to cause burn injuries on

the back when Ujwala was igniting fire wood in the hearth by sprinkling

kerosene. We find no basis for such observation. In fact, the learned

Judge has not reproduced the version in Exh.20 accurately in the

judgment, inasmuch as, Ujwala had not said that she had `caught fire

while sprinkling kerosene' but had said that she had already sprinkled

kerosene on the fire wood and that when she was igniting the fire

wood, the clothes on her person caught fire. Which part of her body

would be burnt and to what extent, would depend on several factors,

including which part of the burning clothes would come in contact with

which part of her body.

51. The learned Judge also observed that the kerosene residues

were found on the partly burnt clothes of Ujwala. The learned Judge in

this regard, in para 35 of the judgment, observed as follows:-

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"35. ...... There is no possibility of coming contact of clothes of

the deceased with kerosene while igniting firewood in the hearth and therefore, the only conclusion which can be drawn from the above facts is that, death of Ujwala was homicidal and not

accidental."

52. In this context, we may observe that the learned Additional

Sessions Judge failed to consider a third possibility, viz. the death

being suicidal. The broad proposition put forth by the learned Judge,

even otherwise, cannot be accepted. Moreover, if importance was to

be given to finding of kerosene residues on the burnt clothes of

Ujwala, it was necessary to have satisfactory evidence regarding the

time, place and manner of seizure of the said clothes. There was no

evidence of any panch witness showing that the said clothes were

seized and sealed at the time of panchnama, but the evidence of

investigating officer also did not show that they were sealed. To top it,

even the seizure panchnama (Exh.41) does not show that the Articles

were sealed. Though the Lady Police Constable Ms. Sharda Bhavsar

(P.W.7) states that, she was handed over six sealed packets and that

the seals were found intact when the packets were delivered in the

Chemical Analyzer's Office at Nashik, there was no evidence to show

as to when the articles were put in the packets and the packets were

got sealed. The seizure of the articles had taken place on 8.3.2007

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and they were sent to the Chemical Analyzer only on 20.3.2007.

Where, and in which condition, they were kept till then, is not indicated

by anyone. Thus, there was no evidence to show as to when the said

packets containing the seized articles were sealed and as to where, in

whose custody, and in what condition, they had been kept till they

were handed over to lady police constable Ms. Sharda Bhavsar on

19.3.2007. In such a situation, no importance to the finding of the

Chemical Analyzer about the presence of kerosene residues on those

articles can be given, particularly because the investigation cannot be

said to be above board and sincere. The very fact that inspite of

availability of conflicting versions of Ujwala in the record itself, the

investigating Officer did not make any attempt to ascertain the truth by

contacting Ujwala, or at least the Executive Magistrate Shri Thakur

and the policeman from Dhule police station, who had recorded

Ujwala's statement, shows that no real or sincere efforts to ascertain

the truth were made during investigation.

53. In our view, the fact that, Ujwala had made two previous dying

declarations, which did not implicate the accused persons and that she

had earlier given a history of accidental burns; and that, at any rate,

the said dying declarations were inconsistent with the dying

declarations made to Gavit and Tolabai and Sonu, on which the

prosecution placed reliance during the trial, was satisfactorily proved.

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Neither the investigating agency made any attempt to ascertain which

of the conflicting versions were true, nor the prosecution attempted to

show that the previous dying declarations could not be relied upon, for

a certain reason or reasons. In view of the conflicting versions it was

not safe to believe the versions reflected in the dying declaration made

to Gavit, and/or to Tolabai and Sonu. In fact, even if the evidence

regarding the dying declaration made to Gavit and the dying

declaration made to Tolabai and Sonu is considered without being

influenced by the fact of other inconsistent dying declarations, still, it

can not be said to be of such a quality, so as to inspire confidence,

either in the fact that Ujwala indeed stated exactly as these witnesses

claim, or that the so called statements of Ujwala contained unalloyed

truth.

54. In our opinion, the prosecution had failed to prove the charge

against the appellants. The appreciation of evidence, as done by the

learned Additional Sessions Judge was not proper. This was a case,

where the appellants should have been acquitted. The impugned

judgment therefore, needs to be set aside, in the interest of justice.

55. The appeal is allowed.

56. The impugned judgment and the sentences imposed by the

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Additional Sessions Judge, Jalgaon, are quashed and set aside.

57. The appellants-accused are acquitted.

58. They be set at liberty forthwith, unless required to be detained in

connection with any other case.

59. The fine amount, if paid, be refunded to the appellants,

respectively.

*****