Bombay High Court
Rameshwar vs Notice To Be Served Through on 14 November, 2011
Bench: A. H. Joshi, A.M. Thipsay
1 cria277.11
IN THE HIGH COURT OF JUDICATURE OF BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 277 OF 2011
Rameshwar S/o Vithoba Gaikwad
Age : 27 years, Occ : Labour,
R/o Waghola, Tq. Phulambri,
Dist. Aurangabad.
..APPELLANT
-VERSUS-
The State of Maharashtra
Through the Police Inspector,
M.I.D.C., Waluj Police Station,
Waluj, Tq. & Dist. Aurangabad
(Notice to be served through
The Public Prosecutor, High Court
Bench at Aurangabad. ig .....
..RESPONDENT
Shri Joydeep Chatterji, advocate for the appellant.
Smt. S.D. Shelke, A.P.P. for Respondent/State.
.....
CORAM : A.H. JOSHI AND
A.M. THIPSAY , JJ.
DATE : 14th November, 2011
JUDGMENT : (PER A.M. THIPSAY, J)
1. The appellant was the accused in Sessions Case No. 270 of 2008,
which had been filed in Sessions Court at Aurangabad. The allegation against
the appellant was that he had committed the offences punishable under
Sections 302 and 498-A of the Indian Penal Code. After holding trial, the
learned Additional Sessions Judge-5, Aurangabad, sentenced the appellant to
suffer imprisonment for life and to pay a fine of Rs. 5,000/-, with a default
sentence, with respect to the offence punishable under Section 302 of the
Indian Penal Code; and to suffer rigorous imprisonment for three years and to
pay a fine of Rs. 5,000/-, with a default sentence with respect to the offence
punishable under Section 498-A of the Indian Penal Code. The appellant,
being aggrieved by the said judgment of conviction and the sentences imposed
upon him, has filed the present appeal.
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2. The prosecution case before the trial Court was, in brief, as follows :
a) That, the appellant was married to Shobha-the deceased-some
time in the year 2005. The appellant and Shobha were residing in their
own house with their child-Sanket-aged about 2 years. The appellant
initially treated Shobha properly, but later on started insisting that she
should bring some money from her parents and started harassing her
on that account. On some occasions, Shobha had gone to her father
and maternal uncle and brought some money, which was given to the
appellant and spent by him. After spending the amount, the appellant
again started harassing Shobha by abusing and beating her and that,
about a month prior to the incident, he started insisting that Shobha
should bring an amount of Rs. 50,000/- from her parents. The appellant
and Shobha attended the marriage of the brother of the appellant about
five to six days prior to the incident; and even thereafter, the appellant
was beating and abusing Shobha.
b) That, on 04.06.2008, at about 9 a.m., the appellant started
quarrelling with Shobha questioning as to why she had not brought the
amount of Rs. 50,000/- from her parents. That, during the quarrel, the
appellant poured kerosene over the person of Shobha and set her on
fire by lighting a match stick. Shobha raised cries, as a result of which,
persons residing in the neighbourhood, including Rekha Ghait (DW-1)
and Kautik Thorat (DW-2) came there. The fire was extinguished and
Shobha was taken to GHATI hospital. A medico legal case bearing No.
212 of 2008 was got registered at M.I.D.C. Waluj Police Station,
Aurangabad. Police Head Constable Digamber Mupde (PW-4)
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recorded statement of Shobha (Exhibit-19). Shobha stated that the
appellant had been ill-treating her, that he was harassing her for money
and that, the appellant had poured the kerosene over her person and
had set her on fire.
c) Based on this statement, a case in respect of offences
punishable under Sections 307 of the Indian Penal Code and 498-A of
the Indian Penal Code was registered by Shripad Paropkari, Deputy
Superintendent of Police, (PW-3). It was entrusted to P.S.I. Laxman
Borse (PW-7) who commenced the investigation. The appellant was
arrested on the same day i.e. on 04.06.2008. On the next day
Chandrakant Sude, Naib Tahsildar & Special Executive Magistrate
(PW-6) again recorded a statement of Shobha, in which also, she
stated that the appellant had poured kerosene over her and had set her
on fire. On 08.06.2008, Shobha succumbed to the burn injuries. The
cause of death of Shobha was described in the notes of the post-
mortem examination on the dead body of Shobha as "Shock due to
burns". Thereafter, the accusation of the offence punishable under
section 307 of the Indian Penal Code was changed to one punishable
under Section 302 of the Indian Penal Code.
3. The prosecution examined seven witnesses during the trial, four of
whom have already been referred to above while narrating the prosecution
case. The others are Jagannath Tupe-father of Shobha-(PW-1), Shivaji Kale-
maternal uncle of Shobha-(PW-2), Dr. Bhushan Ubhale (PW-5), who had
examined Shobha before her dying declarations were recorded by Mudpe-
Police Head Constable (PW-4) and Naib Tahsildar/Special Executive
Magistrate-Chandrakant Sude (PW-6).
4 cria277.11
4. In addition to the oral evidence, a number of documents were tendered
in evidence, marked and exhibited. Amongst them are, the notes of the post-
mortem examination (Exhibit-23), record of Dying Declaration (Exhibit-33)
made by Shobha to Naib Tahsildar/Special Executive Magistrate-Chandrakant
Sude (PW-6) and record of Dying Declaration (Exhibit-19) made to the Police
Head Constable-Digambar Mupde (P.W.4).
5. In his examination under Section 313 of the Criminal Procedure Code,
the appellant, inter alia, submitted that Shobha had committed suicide. The
appellant did not examine himself as a witness but examined two witnesses in
defence, as aforesaid.
6. After considering the evidence adduced before it, the trial Court held
that the charge of offences punishable under Section 302 of the Indian Penal
Code and Section 498-A of the Indian Penal Code had been proved against the
appellant. As such, he was convicted and sentenced, as aforesaid.
7. We have heard Mr. Joydeep Chatterji, the learned Advocate for the
appellant and also Smt. S.D. Shelke, learned Assistant Public Prosecutor for
respondent-State. With the assistance of the learned counsel, we have gone
through the entire evidence and the impugned judgment.
8. It is contended by Mr. Chatterji, that the order of conviction, as recorded
by the trial court, is not in accordance with law. He submitted that the case
against the appellant was based only on dying declarations and that, the
versions in the dying declarations being different, it was not proper or legal to
record conviction on that basis. He also submitted that the learned Additional
5 cria277.11
Sessions Judge failed to consider or appreciate the defence evidence in its
proper perspective. According to him, the appellant was entitled to be
acquitted.
9. The learned A.P.P, on the other hand, contended that the dying
declarations of Shobha have been rightly believed by the learned Additional
Sessions Judge and that, the conviction recorded on the basis of the dying
declarations, is proper and legal.
10.
We may now examine the evidence in respect of the dying declarations
made to Mupde-Police Head Constable (PW-4) and Chandrakant Sude-Naib
Tahsildar/S.E.M. (PW-6), a record of which is at Exhibit-19 and Exhibit-33,
respectively. The first of these dying declarations was made to Digambar
Mupde-Police Head Constable (PW-4) and second was made to Chandrakant
Sude-Naib Tahsildar/Special Executive Magistrate (PW-6). Both these dying
declarations are said to have been recorded in presence of Dr. Ubhale (PW-5),
who is said to have examined Shobha for ascertaining and certifying her state
of mind at the material time. Thus, for evaluation of these dying declarations,
the evidence of Mupde-Police Head Constable (PW-4), the evidence of
Dr.Ubhale (PW-5) and the evidence of Chandrakant Sude-Naib
Tahsildar/Special Executive Magistrate- (PW-6), as also the record of dying
declarations at Exhibit-19 and Exhibit-33, need to be carefully scrutinized.
11. According to Police Head Constable Mupde (PW-4), on 04.06.2008 at
about 10.55 a.m., P.S.O. Nisar registered a medico legal case and directed him
to inquire into the same. Mupade then went to Ward No. 22/23 of GHATI
Hospital, where Shobha was admitted. He met Shobha, inquired about her
name and then went to the "concerned Doctor" for ascertaining whether
6 cria277.11
Shobha was in a fit state of mind, to make a statement. According to Mupde,
Doctor gave his opinion that patient was in a fit state of mind to give a
statement and thereafter, Mupde proceeded to record the statement of Shobha
in presence of the said Doctor. He has then stated what Shobha stated before
him and that, the record of the said statement made by him (Exhibit-19) was
true and correct. In the cross examination, he stated that the direction to go for
inquiry pursuant to the medico legal case was given to him at about 11 a.m.
and that, thereafter, he went to GHATI Hospital and that, he went to Shobha
within one hour from 11.00 a.m. It was suggested to him that when he went to
Shobha, her `relatives of parents side', were present there, but he denied the
said suggestion as "not true". He stated that he could record the statement
within a half an hour. According to him, he was in the hospital for about two
and half hours. His evidence further shows that from the hospital, he went to
Tahsil office at Aurangabad for giving a letter to the Naib Tahsildar/Special
Executive Magistrate in connection with recording of dying declaration of
Shobha. According to him, he reached the Tahsildar's office at about 3.00 to
3.30 p.m. and was there till 4.30 p.m. According to him, the statement of
Shobha, that was recorded by him earlier, was with him at that time. His
evidence also reveals that from the Tahsildar's office, he directly went to the
place of incident where he remained till 6.45 p.m. The suggestion that Shobha
had not made any statement to him and he has prepared a false record in that
regard has been denied by him, as false. He however, admitted that as per the
intimation that was initially received by him in connection with medico legal
case, Shobha had set herself on fire.
12. Coming to the evidence of Chandrakant Sude (PW-6), he states that on
04.06.2008, he received a letter from M.I.D.C. Waluj Police Station with a
request to record dying declaration of Shobha. He claimed to have gone to the
7 cria277.11
hospital at about 11 a.m. on the next day i.e. on 05.06.2008. According to him,
he went to the Ward no. 22/23 and asked the "concerned doctor" to give his
opinion whether Shobha was in fit state of mind to give her statement.
According to him, since the doctor certified that Shobha was in a position to
give statement, he recorded her statement after asking her relatives to leave
the ward. He then stated what Shobha allegedly told him and further stated
that the record of the same made by him in his own handwriting (Exhibit-33)
was true and correct.
13.
We may now examine the evidence of Dr. Bhushan Ubhale (PW-5).
Dr. Bhushan Ubhale has stated that on 04.06.2008, he was attached to the
burn ward no. 22/23 of GHATI hospital and that, one Shobha Gaikwad was
indoor patient in the said ward. According to him, at about 5.30 p.m. one
constable from M.I.D.C. Waluj Police Station requested him to examine the
said patient and asked for a certificate whether the said patient was in a fit
state of mind to make a statement. That, this witness then examined Shobha
and found that she was conscious, oriented in time, place and person, and
therefore, was in a sound state of mind. According to him, the Constable
started recording of statement of Shobha in his presence and that, after
completing of recording of statement, this witness again examined Shobha and
found that she was conscious, oriented in time, place and person and was in a
sound state of mind. That, he then made endorsement to that effect on the
statement of Shobha. The endorsement, which is on the same paper, on which
the statement of Shobha (Exhibit-19) has been recorded, has been separately
marked as Exhibit-26.
14. It would be interesting to note that though this witness is said to be
concerned also with the recording of the other dying declaration made by
8 cria277.11
Shobha and recorded by Chandrakant Sude-Naib Tahsildar/Special Executive
Magistrate (PW-6), he did not mention anything about it, in his examination- in-
chief, which was recorded on 30.08.2010. In fact, in the cross examination he
was asked whether he had made a similar type of endorsement on any other
document, to which he replied in negative. He also admitted that he had not
maintained any record to show that upon the request of constable, he initially
examined Shobha and found her to be well oriented. It has been revealed in
the cross examination, that when he examined Shobha, her relatives i.e. her
parents and others were near her. The witness claimed that he himself asked
the relatives to leave the ward. It was suggested that he never examined
Shobha, but that suggestion was denied by him.
15. It is seen that Dr. Bhushan Ubhale (PW-5) was again recalled for further
examination-in-chief on 10.03.2011, on an application made by the prosecution.
This time, he has given evidence with respect to the second dying declaration
(Exhibit-33) made by Shobha and recorded by Chandrakant Sude-Naib-
Tahsildar/Special Executive Magistrate (PW-6); and it is obvious that, that was
the purpose of recalling him. After recall, he stated that, the Special Executive
Magistrate came to the hospital and requested him in writing to ascertain
whether Shobha was in a state of mind to make statement. That, he then went
to a ward no.22/23 and after examining Shobha concluded that she was
conscious and well oriented. That, he then asked the relatives of Shobha, who
were present there, to go out; and then, the statement of Shobha was recorded
by the Special Executive Magistrate in his presence. That, thereafter he made
endorsement upon the statement recorded by the Special Executive
Magistrate. He has identified said endorsement, which has been marked as
Exhibit-43, which reads as under :
9 cria277.11
"05.06.2008, 11: 15 a.m.
Patient was conscious oriented in time/place and person and
was in a complete sound state of mind during the period of
11:15 to 11:45 am and gave statement infront of me.
-Sd-
Dr. Bhushan Ubhale
General Surgeon
16. It is noticed that the aforesaid endorsement (Exhibit-43) is not on the
statement of Shobha, recorded by the Naib Tahsildar/Special Executive
Magistrate (PW-6) but on a letter ( Exhibit-31) purportedly written by the said
Naib Tahsildar/Special Executive Magistrate to the Medical Officer attached to
GHATI hospital. Thus, the claim of the witness that he made the said
endorsement on the statement recorded by the Special Executive Magistrate is
revealed to be incorrect.
17. In the cross examination, when questioned about not having brought
the case papers with respect to the examination of Shobha, he submitted that
he did not find the case papers. He was unable to state, as to on how many
occasions he had examined Shobha. This indicates that this time he forgot the
alleged happenings, with respect to the dying declaration of Shobha recorded
by Mupde (PW-4), as had been mentioned by him when he was initially
examined.
18. It may be observed that while basing the conviction solely on dying
declaration or dying declarations, the evidence with respect to such dying
declaration must be such so as to inspire confidence. The Court must be
satisfied, firstly, about the fact of such declaration having been made by the
10 cria277.11
declarant. This would involve the appreciation of the evidence of the person or
persons, who say that such declaration was made to them or in their presence.
If the dying declaration made by the declarant is claimed to have been
recorded, then the Court should be satisfied about the accuracy of such record,
for which, again, assessment of the evidence of the person, who witnessed
making of declaration and/or the person or persons making a record thereof, or
otherwise involved in the process of making the record, would be necessary. It
is on being satisfied about these aspects that the Court will have to look at the
version of the declarant as reflected in the dying declarations and then judge
whether it is reliable and acceptable, by applying the same parameters which
the Court applies for judging veracity of the testimony of a witness. This may
involve, inter alia, the assessment of the physical and mental condition of the
declarant, the possibility of the declarant being tutored, etc. If on considering
all these aspects, the Court comes to the conclusion that the dying declaration
was, indeed, made and that, the version appearing therein is reliable and true,
then-and only then-the dying declaration can be said to be confidence inspiring
and may be acted upon even without any corroboration.
19. On an examination of the evidence of Digambar Mupde-Police Head
Constable (PW-4) and Chandrakant Sude-Naib Tahsildar/Special Executive
Magistrate (PW-6) in the light of the evidence of Dr. Bhushan Ubhale (PW-5)
with respect to the time and manner of the recording of the said dying
declarations, and the circumstances in which they were recorded, it becomes
apparent that there are a number of obvious inconsistencies and
contradictions. Digambar Mupde-Police Head Constable (PW-4) categorically
states that the dying declaration (Exhibit-19) was recorded by him some time at
about 12 to 12:30 p.m. It may be recalled, that he claims to have been in
GHATI hospital for about 2 and half hours and going by his version, in any
11 cria277.11
case, the dying declaration was recorded by him before 2:30 p.m. In fact, at
about 3 to 3:30 p.m, he went to Tahsildar's office and was there till 4:30 p.m.
From there, he went to place of incident where he was till 6:45 p.m. He has
categorically denied that he reached GHATI hospital at about 5 p.m. Now in
the light of this evidence, the evidence of Dr. Bhushan Ubhale that a constable
came to him at about 5:30 p.m. on 04.06.2008 cannot be accepted. The
endorsement Exhibit-26 made on the record of dying declaration Exhibit-19
purports to have been made at 5:30 p.m., and it is quite likely that therefore Dr.
Bhushan Ubhale is sticking to that time as the time of recording the statement.
20.
Dr. Bhushan Ubhale (PW-5), though has certified the fitness of Shobha
with respect to two dying declarations recorded on successive days, did not
speak at all about the second dying declaration when he was first examined as
a witness. In fact, at that time, to a categorical question as to `whether a
similar endorsement as was made by him on Exhibit-19 had been made by him
on any other document' asked to him, he gave a categorical answer in
negative. It is further curious that when he was recalled for further
examination-in-chief he did not remember about the first endorsement i.e.
marked as Exhibit-26 on the document Exhibit-19. This time, he spoke only
about the endorsement in connection with the dying declaration (Exhibit-33)
recorded by the Naib Tahsildar/Special Executive Magistrate (PW-6). There
also he is proved to be wrong with respect to his claim that the said
endorsement about fitness of Shobha was made by him on the record of dying
declaration made by Naib Tahsildar/Special Executive Magistrate.
21. Considering the serious infirmities in the evidence of Dr. Bhushan
Ubhale (PW-5), it is doubtful whether this witness had really examined Shobha
and found her to be fit. Since a time as 5.30 p.m. has been put by him in the
12 cria277.11
endorsement (Exhibit-27), it has to be believed that the said endorsement was
made at 5.30 p.m. However, Shobha's statement was not recorded by Mupde-
Police Head Constable (PW-4) at that time and as discussed earlier, the
evidence indicates that it was recorded much before that and in any case
before 2.30 p.m. Such type of discrepancy in the evidence would undoubtedly
indicate that perhaps Shobha was not medically examined at all by Dr. Ubhale
(PW-5); and in any case, the endorsement about Shobha being in a fit
condition to make a statement was not based on the medical examination of
Shobha, made at or about the time when the statement was recorded.
Because both the witnesses are categorical on the time of recording of the
statement of Shobha about Shobha having been examined medically just
before making statement and even after completing the recording thereof, it
follows that none of them can be relied upon either for accepting the aspect of
Shobha's having been medically examined before her statement (Exhibit-19)
was recorded.
22. The evidence in respect of the dying declaration recorded by
Chadrakant Sude-S.E.M. /Naib Tahsildar (PW-6) is also not satisfactory. It has
already been seen that Dr. Bhushan Ubhale (PW-5) claimed to have made his
endorsement certifying Shobha to be in a fit state of mind on the statement of
Shobha recorded by Chandrakant Sude-Naib Tahsildar/S.E.M. but that,
actually it was not on her statement at all. It has been made on the document
at Exhibit-31, which is a letter addressed to the Medical Officer, GHATI hospital
by Shri Chandrakant Sude-Special Executive Magistrate/Naib Tahsildar
(PW-6). This letter does not request the medical officer to ascertain whether
Shobha was in a fit state of mind but seeks "permission to record dying
declaration". Be that as it may, the endorsement by itself is not free from
suspicion, in as much as, it purports to have been made at 11.15 a.m. (as that
13 cria277.11
time has been mentioned on the top of the endorsement) but the endorsement
records that `patient was conscious oriented etc, during the period of `11.15 to
11.45'. The endorsement also claims that the statement was given by patient-
Shobha-infront of person making endorsement i.e. Dr. Bhushan (PW-5). The
infirmities in his evidence as discussed earlier are to be seen in the context of
the fact that no case papers in respect of the examination of Shobha or the
treatment given to her were produced before the trial Court and no satisfactory
answer for the non-production thereof was given. Even otherwise, that he does
not remember to have examined Shobha twice on successive days for
ascertaining her fitness is itself sufficient to cast a doubt on his testimony.
would be difficult to believe that Dr. Bhushan would forget having examined the
It
patient twice on successive dates, for ascertaining her fitness to make a
statement, even when he was specifically questioned about it. It would be
legitimate to infer that either he might not have examined Shobha, or his
memory is rather weak; and in either case, his evidence cannot be relied upon.
23. Undoubtedly, the version of Shobha as reflected in the dying
declarations Exhibit-19 and Exhibit-33 is quite consistent and mentions that the
appellant had poured kerosene over her person and had set her on fire.
However, whether she indeed made those statement and at any rate, whether
she was in a fit state of mind when she made the said statement is certainly
rendered doubtful in the light of the infirmities in the evidence of persons, who
have recorded the said dying declarations and the medical officer, who certified
about the mental fitness of Shobha when the statements were allegedly made,
particularly because the intimation in respect of the medico legal case was
admittedly, that Shobha had set herself on fire because of the quarrel between
her and the appellant. The relevant communication (Exhibit-20) which has
been tendered in evidence, shows that Shobha had stated that she had set
14 cria277.11
herself on fire due to the quarrel between her and her husband. Thus,
Exhibit-20 speaks of the first dying declaration made by Shobha, which is to the
effect that she set herself on fire. The contentions of Mr. Joydeep Chatterji,
learned Advocate for the appellant is that this dying declaration of Shobha
ought to be taken into consideration.
24. This aspect, namely, `that earlier Shobha had made a different
statement as regards the cause of her death', was brought to the notice of the
trial Court, but it was disregarded by the learned Additional Sessions Judge on
the reasoning that the contents of the M.L.C. report had no value in absence of
the evidence of doctor, to whom the said statement was made. The approach
of the trial Court in that regard does not appear to be proper to us.
Undoubtedly, the person to whom the said dying declaration was made by
Shobha, was not examined as witness. However, the document Exhibit-20
containing the record of such statement by Shobha was tendered in evidence
by the prosecution only. The document which was produced by the
prosecution in the course of adducing the prosecution evidence cannot be
lightly ignored on the claim that such dying declaration is not duly proved.
Having brought the document Exhibit-20 on record, the authenticity of which is
at no point of time in dispute and the contents of the said document being the
first information to the Investigating Agency with respect to the incident of
burning, if the prosecution wanted to claim that Shobha's statement reflected
therein was not true, or that Shobha had actually not made the statement, then
it was obligatory on the part of the prosecution to have adduced evidence to
make it clear. This is particularly so, because Mupde-Police Head Constable
(PW-4) has admitted in the cross examination that from medico legal case, he
learnt that Shobha had disclosed to the C.M.O. that she herself had poured
kerosene on her person and had set herself ablaze. If that record was not
15 cria277.11
correct, it was for the prosecution to have established so. Once it was not
done, the appellant was entitled to show to the Court, that Shobha had earlier
made some different statement with respect to the cause of her death, as per
the prosecution case itself.
25. Mr. Joydeep Chatterji, learned Advocate for the appellant has drawn our
attention to a decision of this Court in the case of Bhairath Bhaurao Kanade
V/s The State of Maharashtra ( Criminal Appeal No. 695 of 1982, decided
on 22.07.1996), wherein a similar question fell for consideration of this Court.
In that case also, there was a plurality of dying declarations and one of the
dying declaration 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 the dying declaration
contained in the medical case papers was not satisfactorily proved, in as much
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 to 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. The principle that was applied in the said case which
appears proper, legal and logical to us, must be applied in the present case
also. In other words, 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 was that
Shobha herself had set her on fire; and that this information was, purportedly,
given by Shobha herself. It is true, that such information could be incorrect, or
16 cria277.11
might not have been given by Shobha herself, but when this aspect was not
examined in the course of investigation, so as to rule out the possibility which
was in conflict with the prosecution case, it would not be open to the
prosecution to claim that the version in Exhibit-20 should not be taken into
consideration while judging whether the version of Shobha, as reflected in
Exhibit-19 and Exhibit-33, could be safely accepted as true, by contending that
the doctor to whom the said statement of Shobha was made, was not
examined as a witness. In our opinion, the version in the dying declarations
made to Mupde-Police Head Constable (PW-4) and Sude-Naib
Tahsildar/S.E.M. (PW-6) needs to be assessed in the background of the
existence of another version believed to be of Shobha, which was prior in point
of time to the dying declarations made by her to Mupde-Police Head Constable
(PW-4) and Sude-Naib Tahsildar/S.E.M. (PW-6).
26. Though, Mupde-Police Head Constable (PW-4) has denied that the
relatives of Shoba were present around her when the dying declarations were
recorded, all other evidence, including that of the relatives (PW-1 and PW-2)
shows that they were there, before her statement was actually recorded. There
is substance in the contention advanced by Mr. Joydeep Chatterji, the learned
Advocate for the appellant that in these circumstances, Shobha, who was
apparently ill-treated by the appellant, having been tutored to make a statement
implicating the appellant for having murdered her, cannot be ruled out.
27. Shobha is also said to have made dying declarations to her father
Jagannath Tupe (PW-1) and Shivaji Kale (PW-2), Shobha's maternal uncle.
Both these witnesses have stated that when they went to GHATI hospital and
enquired of the incident with Shobha, she informed them that she was beaten
and set on fire by the appellant. However, it would be difficult to place reliance
17 cria277.11
on this evidence for a number of reasons.
28. Jagannath Tupe (PW-1) said that he learnt from one Agaji about
Shobha having sustained burn injuries and having been admitted in GHATI
hospital. According to Jagannath, Agaji informed him that the appellant had
poured kerosene on Shobha and set her on fire and that is how Jagannath
came to know about the incident and came to GHATI hospital. However, the
said Agaji has not been examined as a witness. What was the information that
was received by Agaji and what was the source thereof was held back during
the trial. In any case, Jagannath had already believed that Shobha was set on
fire by the appellant, even before Shobha allegedly told him so. His evidence
of the oral dying declaration made to him by Shobha, needs to be evaluated in
the context of this position.
29. In the cross examination, Jagannath admitted that since one year after
her marriage, Shobha was insisting that the appellant should get the joint family
properties consisting of agricultural land, partitioned. He also admitted that
appellant used to avoid seeking partition by thinking of marriage of his younger
brother and that demand of partition was the only dispute between her and the
appellant.
30. The evidence of Shivaji Kale (PW-2) shows that when he went to
GHATI hospital, appellant was not present and appellant came after him. He
denied the suggestion that Shobha stated to him that she had set herself on
fire. Not much reliance can be placed on the evidence of this witness with
regard to the oral dying declaration made to him by Shobha, in view of the fact
that his statement came to be recorded only after Shobha's death i.e.
08.06.2008 as stated by Laxman Bhorse-the Investigating Officer (PW-7) in his
18 cria277.11
evidence. Further, there are improvements in the evidence of Jagannath
(PW-1) and Shivaji Kale (PW-2) with respect to the alleged ill-treatment given
by the appellant to Shobha.
31. It would be difficult to place reliance on the dying declarations of
Shobha, the record of which has been made by Mupde-Police Head Constable
(PW-4) and Sude-Naib Tahsildar/S.E.M. (PW-6) at Exhibit-19 and Exhibit-33,
respectively. The various infirmities in the evidence of Mupde-Police Head
Constable (PW-4), Dr. Ubhale (PW-5) and Bhorse-Investigating Officer (PW-7),
discussed above, render it doubtful whether such declarations were indeed
made and further Exhibit-19 and Exhibit-33 constitute an accurate record of
what was stated by Shobha. Whether Shobha was mentally and physically fit
is also rendered doubtful by the glaring infirmities in the evidence of Dr. Ubhale
(PW-5). Further, that the initial information of the incident, as received by the
Investigating agency was that Shobha had set herself on fire cannot be
overlooked, and if in that context the fact that Shobha was surrounded by her
relatives including Jagannath (PW-1) and Shivaji (PW-2) before she allegedly
made the dying declarations implicating appellant, is viewed, the dying
declarations cannot be said to be free from the possibility of Shobha having
been tutored.
32. We may now examine the defence evidence. Both the defence
witnesses are the neighbours of the appellant and Shobha. Both of them
arrived on the scene immediately after the incident of Shobha having caught
fire. According to Rekha Ghait (DW-1), at about 9 a.m. to 9:30 a.m. on
04.06.2008, while she was sitting in her courtyard, the appellant left his house
and went towards his shop situated a few feet away from his house. That, at
that time she heard cries of Shobha and on hearing the same, appellant also
19 cria277.11
came back from the shop. That, Shobha came out of the house. She was
burning. The appellant poured water over her person and extinguished the
fire. Kautik Thorat (DW-2) assisted the appellant in extinguishing the fire.
Then the appellant and other persons who had gathered there including Thorat
(DW-2) took Shobha to the hospital. In the cross examination, it was
suggested to her that the appellant and Shobha used to frequently quarrel,
which suggestion was denied by her.
33. Thorat (DW-2) stated that at the time of incident, he was in his house
and when he heard cries, he came out and saw that the wife of the appellant
was in flames. That, appellant was extinguishing the fire. That, he and others
helped in extinguishing the fire and then the witness, his wife and the appellant
took Shobha to GHATI hospital. He also stated that while proceedings to the
hospital in a Auto Rickshaw on enquiry made by them, Shobha disclosed that a
quarrel had taken place between her and appellant and that, due to the quarrel
she herself poured kerosene upon her person and set herself ablaze.
34. In the cross examination of the defence witnesses, nothing which would
discredit them could be elicited. The Court put certain questions to Thorat
(DW-2) and made a note that he was taking much time to reply to those
questions and that, `he answered in both ways' and that, he replied after
questions were put repeatedly. In our opinion, Thorat (DW-2) might have taken
some time due to the peculiar nature of the three questions, that were put to
him by the Court. It is possible that he was thinking of what exactly the Court
was arriving at by putting questions to him and this might have led him to be
careful while answering for fear of being disbelieved giving an answer in a
particular way. We, however, are not of the opinion that the defence evidence
has been shown to be false or unreliable. The defence witnesses are the
20 cria277.11
natural witnesses and as a matter of fact their statements were recorded by the
Investigating Officer. Thorat (DW-2 ) accompanied the appellant and the
victim, to the hospital in a Auto Rickshaw, and in our view, it would have been
more appropriate if the prosecution had examined him as a witness. He
certainly was a material witness and ought not to have been withheld. Though,
the Court questioned him, he could not be contradicted with any previous
statement made by him.
35. Upon considering the totality of the evidence-the prosecution as well as
the defence-certainly, it appears to us to be unsafe to base the conviction of the
appellant only on the dying declarations said to have been made by Shobha.
The trial Court, in our view, has not analyzed the evidence of Mupde-Police
Head Constable (PW-4), Dr. Ubhale (PW-5) and Sude-Naib Tahsildar/S.EM.
(PW-6) properly and has failed to notice and interpret the discrepancies
appearing in the evidence of these witnesses. In our opinion, this was a case
where the appellant was entitled to the benefit of reasonable doubt, which
arises about his guilt.
36. We, therefore, allow the appeal and set aside the judgment of
conviction and the sentences imposed upon the appellant. The appellant
stands acquitted. Fine, if paid, be refunded to him.
Sd/- Sd/-
(A.M. THIPSAY, J.) ( A.H. JOSHI, J.)
ga s/cria277.11
