Bombay High Court
Subhash Ratan Chavan And Anr vs The State Of Mah on 22 December, 2015
Bench: S.V. Gangapurwala
1 cri appeal 519.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 519 OF 2012
1. Subhash S/o Ratan Chavan,
Age : 36 Years, Occu. : Agril.
R/o Bhatsawangi Tanda,
Tq. & Dist. Hingoli.
2. Pappu S/o Vilas Chavan,
Age : 22 Years, Occu. : Agril.,
R/o Bhatsawangi Tanda,
Tq. & Dist. Hingoli. .. Appellants
Versus
The State of Maharashtra,
Through Basamba Police Station,
Tq. & Dist. Hingoli. .. Respondent
Shri Joydeep Chatterji, Advocate for Appellants.
Shri A. G. Magare, A.P.P. for the Respondent/State.
CORAM : S. V. GANGAPURWALA AND
V. K. JADHAV, JJ.
DATE ON WHICH RESERVED FOR JUDGMENT : 26/11/2015
DATE ON WHICH JUDGMENT PRONOUNCED : 22/12/2015
ORAL JUDGMENT (Per S. V. Gangapurwala, J.) :-
. The present appellants/accused Nos. 1 and 2 are
prosecuted for the offences punishable U/Sec. 302 and 504 read
with Sec. 34 of the Indian Penal Code (for short " I. P. Code").
2 cri appeal 519.12
The accused No. 1/Subhash Chavan is convicted for the offence
punishable U/Sec. 302 of the I. P. Code and is sentenced to suffer
rigorous imprisonment for life. The accused No. 1 is also
convicted for the offence punishable U/Sec. 504 of the I. P. Code
and is sentenced to suffer rigorous imprisonment for six months
and to pay fine of Rs. 5,000/-. The accused No. 2/Pappu Chavan
is acquitted for an offence punishable U/Sec. 302 of the I. P. Code,
but is convicted for an offence punishable U/Sec. 504 of the I. P.
Code and sentenced to suffer rigorous imprisonment for six
months and to pay fine of Rs. 5,000/- and in default of payment of
fine to suffer three months rigorous imprisonment.
2. As per the prosecution case, on or about 28 th December,
2009 at 06.00 a.m. the deceased Sau. Sunita Sanjay Chavan had
been to fetch water by means of Pohara (bucket) from well. The
accused persons were nearby the well. They tried to snatch the
bucket and rope from the deceased. The same was resisted by
the deceased. Both the accused persons abused her. The
deceased returned home. Both of them followed her. They
abused her when she reached her house. The neighbouring
persons convinced the accused persons. The accused persons
brought kerosene in a plastic can from their house with a match
box, poured kerosene on her person and ignited her. The
complainant's saree caught fire. She received burn injuries. One
Vinod Kaluram Rathod threw water on her person and also
gunny bags so as to extinguish fire. The deceased Sunita
3 cri appeal 519.12
sustained 98% burns. She was shifted to Civil Hospital Hingoli.
Two dying declarations Exhibit 19 and Exhibit 29 were recorded.
Exhibit 19 was recorded by the Police Officer, whereas Exhibit 29
was recorded by the Awwal Karkun of the Tahsil Office. It was
also story of prosecution that the oral dying declaration was
made to the father and mother i. e. P.W. Nos. 6 and 7. The
prosecution had also examined one Vinod Rathod who had
extinguished the fire. Upon appreciation of the evidence, the
Sessions Court convicted accused No. 1/Subhash Chavan for the
offences punishable U/Sec. 302 and 504 of the I. P. Code and the
accused No. 2/Pappu Chavan for an offence punishable U/Sec.
504 of the I. P. Code.
3. Mr. Chatterji, the learned counsel for the appellant
strenuously contends that the case of the prosecution rests solely
on the dying declarations Exhibit 19 and Exhibit 29, so also oral
dying declarations made to the P.W. No. 6 and 7. According to
the learned counsel, if all the four dying declarations are read
together, it would be clear that, the said dying declarations are
inconsistent with each others. Each dying declaration is laying
down a different story, which cannot be believed. The said dying
declarations do not inspire confidence. It is the case of multiple
dying declarations and when it is a case of multiple dying
declarations, the inconsistencies would be vital to the prosecution
case. According to the learned counsel, the material divergence
will have to be considered. The learned counsel relies on the
4 cri appeal 519.12
judgment of the Apex Court in the case of Dandu Lakshmi
Reddy Vs. State of A. P. reported in AIR 1999 SC 3255.
The learned counsel also relies on the judgment of the Apex
Court in a case of P. V. Radhakirishana Vs. State of
Karnataka reported in AIR 2003 SC 2589 to submit that,
dying declaration is only piece of untested evidence and must
satisfy the Court that what is stated therein is unalloyed truth to
act upon. The learned counsel submits that, Exhibit 19 cannot
be considered, as the same is made in presence of the father of
the deceased. The father of the deceased has also signed the said
dying declaration. Such a dying declaration cannot be relied.
The possibility of tutoring cannot be ruled out. For the said
purpose, the learned counsel relies on the judgment of this Court
in the case of Sunil Kashinath Raimale Vs. State of
Maharashtra reported in 2006 Cr. L. J. 589.
4. The learned counsel further submits that, while
appreciating the evidence of dying declaration, the Court has to
be extremely cautious and examine with meticulous care the
evidence regarding recording of dying declaration. The dying
declaration recorded should be of a sterling quality and if there
are suspicious circumstances, the dying declaration has to be
rejected. The learned counsel relies on the judgment of this
Court in a case of Tukaram Dashrath Padhen and others
Vs. State of Maharashtra reported 2012 All M. R.
5 cri appeal 519.12
2754. According to the learned counsel, where there are
multiple dying declarations and acceptance of one dying
declaration falsifies the other dying declarations have to be
necessarily rejected. The learned counsel relies on the judgment
of this Court in a case of Suresh Arjun Dodorkar (Sonar)
Vs. State of Maharashtra reported in 2005 All M. R.
(Cri.) 1599.
5.
The learned counsel submits that, Exhibit 19 and 29 are
the two dying declarations which are also inconsistent in many
aspects. The dying declaration Exhibit 19 is made in presence of
the father before Police Officer. The father of the deceased has
also signed the said dying declaration. Exhibit 29 is the dying
declaration made before the Awwal Karkun of the Tahsil Office.
In dying declaration Exhibit 19 it is stated that, the accused
abused and threatened to kill her. In dying declaration Exhibit
29 the said fact is not stated. In dying declaration Exhibit 19
the deceased said that neighbours tried to pacify them, but in
vain. The same is lacking in Exhibit 29. In Exhibit 19 it is
stated that, deceased was annoyed and insulted so she went to
their house and talked to them. This fact is not stated in Exhibit
29. The scribe of Exhibit 19 P.W. No. 2 is examined before the
Court, wherein he stated that doctor has written the time as
12.20 p.m. to 13.00 p.m. That endorsement is said to have been
made before recording the dying declaration. He also specifically
admits that, the relatives of the deceased Sunita were present
6 cri appeal 519.12
there and he has obtained the signature of father of deceased P.
V. Rathod. The said statement was not read over and explained
to the deceased Sunita and she has not stated that the same is
correct. The evidence of P.W. No. 2 scribe of Exhibit 19 very
clearly and categorically refers to the presence of the relatives of
the deceased at the time of recording the dying declaration. So
also endorsement of the doctor is put before recording of dying
declaration itself. The evidence of P.W. No. 4 scribe of second
dying declaration Exhibit 29 also does not inspire confidence.
According to the learned counsel as per Exhibit 20, P.W. No. 4,
she received requisition and she reached hospital at 1.30 p.m.
She received requisition letter at 12.30 p.m., but there is
endorsement that, she had mentioned the time on Exhibit 20 of
having received it at 1.35 p.m. and after receipt of requisition,
she went to Civil Hospital, Hingoli. She further states that,
since recording statement of deceased, the original dying
declaration was in his custody. In the original dying declaration
Exhibit 29 it bears the endorsement R and below that, there is
name of K. B. Mitkar dated 31.12.2009, whereas xerox copy of
dying declaration Exhibit 29 produced with the charge sheet,
bears remark R, but there is no mention of name K. B. Mitkar.
In the cross she has admitted that, as she was in frightened
condition she has written the date in Marathi and month and
year in English. She also admits that with regard to the time of
the dying declaration there is over writing in figure 30 and in
7 cri appeal 519.12
word two there is over writing and he cannot assign any reason
for the said over writing in the time. She also admits that, the
doctor has put signature at about 2.45 p.m. and at the beginning
of the recording of the dying declaration the doctor has not put
her signature. She also admits that, patient was serious and was
unable to talk properly. She also admits that, when she went
near the patient eight to ten persons were present there. The
learned counsel submits that, the evidence of P.W. No. 2 and P.W.
No. 4 would show that the dying declaration was recorded in
presence of the relative i. e. father and there are anomalies to
great extent as are pointed out.
6. According to the learned counsel apart from these two
dying declarations, the oral dying declarations given to the father
and mother are also relevant to be considered. P.W. No. 6 father
and P.W. No. 7 mother have stated in examination in chief that it
is Pappu i. e. accused No. 2 who poured kerosene on the person of
deceased and ignited her and ran away. In dying declaration
Exhibit 19 and 29 no act is attributed to accused No. 2/Pappu,
whereas in the oral dying declaration before the father and
mother the act is attributed to accused No. 2/Pappu. So also in
the evidence of P.W. No. 7 there is material omission that of
Subhash caught hold and Pappu poured kerosene and ignited
with match stick. The mother specifically says that, deceased
Sunita had a dispute with her family members and deceased
Sunita's mother-in-law insulted her on the ground of domestic
8 cri appeal 519.12
work and the family members treated her cruelly. It is admitted
by her that the deceased Sunita was behaving like a mad person.
She also admitted that Sunita was fed up and committed suicide
because family was treating her cruelly and had not sent her for
cremation of Shiva. The P.W. No. 6 also admitted that, while
recording Exhibit 19, he has put his signature over it. According
to the learned counsel even witness P.W. No. 5 Vinod Rathod has
not supported prosecution case. The said evidence read in
totality does not prove the prosecution case. In fact, multiple
dying declarations are not in consonance with each other in
respect of proving the case of the prosecution. The said dying
declarations read in totality disproves the case of the prosecution
itself. The learned counsel submits that, the judgment and
conviction deserves to be set aside.
7. The learned Assistant Public Prosecutor submits that,
minor inconsistencies in the dying declarations would not affect
the credibility of the dying declarations. The dying declaration
in substance will have to be considered. In both dying
declarations Exhibit 19 and 29, the deceased has categorically
stated that, it is accused No. 1 who had poured kerosene on her
and set her ablaze. Both dying declarations are consistent in this
regard. Only because father was present at the time of recording
Exhibit 19, that would not be sufficient to disbelieve the said
dying declaration. Even Exhibit 29 second dying declaration
corroborates the said fact of accused Subhash pouring kerosene
9 cri appeal 519.12
and setting her ablaze. The learned A. P. P. submits that,
difference in timing has been sought to be harped by the learned
counsel for the defence, that would not make much difference and
that would not affect the credibility of the dying declarations.
The explanation is given by P.W. No. 4 as to why the dates are
written in that fashion. The substance of the dying declaration is
required to be considered. The scribe of dying declarations have
proved the dying declarations and the same being consistent in
material aspects are sufficient to convict the accused No. 1 for
the offence punishable U/Sec. 302 of the I. P. Code. So also to
convict accused Nos. 1 and 2 for the offence punishable U/Sec.
504 of the I. P. Code. According to the learned A. P. P., P.W. No. 6
and 7 can be said to have become hostile. Their evidence can be
relied to the extent to which it supports the prosecution version.
The defence would not be entitled for any benefit of it. When the
written dying declarations are there, much importance need not
be given to the evidence of P.W. Nos. 6 and 7. The learned A. P. P.
relies on the judgment of the Apex Court in a case of Bhajju
alias Karan Singh Vs. State of M. P. reported in 2012
AIR SCW 1963 (1).
8. With the assistance of learned counsel, we have gone
through the judgment, record and proceedings.
9. The case of the prosecution is based on dying declarations
Exhibit 19 and Exhibit 29, so also the oral dying declaration said
10 cri appeal 519.12
to have been made to the P.W. No. 6 and P.W. No. 7 i. e. the father
and mother of the deceased. There cannot be any dispute with
the proposition put forth by the learned A. P. P. that, if a dying
declaration is found reliable, the same can form the basis of
conviction. The same can be acted upon, even if the dying
declaration is uncorroborated. However, if the infirmities in the
dying declarations are such as would render a dying declaration
infirm, the same may be refused to be accepted as forming basis
of conviction.
10. The case of the prosecution in the present matter rests on
multiple dying declarations i. e. dying declarations Exhibit 19
and 29 and two oral dying declarations. If the case is based on
multiple dying declarations, then all the dying declarations have
to be consistent on material aspects of the incident. The Court
cannot pick and choose one dying declaration de-hors the other.
11. Scanning the dying declarations Exhibit 19 and 29 and also
the oral dying declarations made to P.W. Nos. 6 and 7, it would be
seen that, they are not consistent about the acts attributed to
both the accused. In written dying declaration Exhibit 19 and
Exhibit 29, the act of pouring kerosene and setting ablaze has
been attributed to accused No. 1/Subhash, whereas in the oral
dying declaration made to the father and mother of the deceased
i. e. P.W. No. 6 and P.W. No. 7 as narrated by them, the act of
11 cri appeal 519.12
pouring kerosene and setting ablaze is attributed to accused No.
2/Pappu. This is a major inconsistency in the dying declarations.
In the written dying declaration Exhibit 19, the deceased says
that, both the accused snatched water pitcher from her at the
public well. They abused her. She came home. The accused
abused and threatened to kill her. Neighbourers tried to pacify
them. The deceased felt annoyed and insulted, so she went to
their house and talked to them. Thereafter, accused No.
1/Subhash said he would show her and Subhash went inside
house and came with a plastic can, poured kerosene on her and
set her ablaze. Whereas in dying declaration Exhibit 29 after
narrating the incident on the public well, she does not say that
accused followed her to her home. They abused and threatened to
kill her. It also does not state that, the neighbourers tried to
pacify them. It also does not state that, she was annoyed and felt
insulted, so she went to their house and talked to them. These
facts are absent in dying declaration Exhibit 29 which are stated
in dying declaration Exhibit 19. The dying declaration Exhibit
19 is recorded in the presence of the father of the deceased P.W.
No. 6. Not only that the father P.W. No. 6 has also signed the
said dying declaration. The P.W. No. 6 has further stated in his
evidence that, Jamadar Kamble had written the statement of
Sunita i. e. deceased in his cabin. Thereafter police head
constable Kamble obtained his signature on the statement in his
cabin. He further stated that, after police recorded the
12 cri appeal 519.12
statement of deceased, her statement was not recorded by
anybody till her death. Exhibit 29 is said to be recorded
subsequently.
12. The scribes of Exhibit 19 and Exhibit 29 have deposed
before the Court. They are P.W. No. 2 and P.W. No. 4. The said
scribe P.W. No. 2 admits that doctor has put his endorsement i. e.
time 12.20 p.m. to 1.30 p.m. before starting the recording of
dying declaration. He also admits that, relatives of the deceased
were present there and he has obtained the signature of the
father of deceased. He also admits that, the relatives of the
deceased were present near her while recording the statement.
The Awwal Karkun from Tahsil office who has recorded dying
declaration Exhibit 29 is P.W. No. 4. She admits that, she
received the requisition letter of police by 12.30 p.m. However,
she has written that she has received it at 1.35 p.m. She also
admits that, after receipt of requisition within 30 minutes she
reached the Civil Hospital. The original dying declaration since
the date of recording till her deposition was in her custody. She
also admits that, in the xerox copy of the dying declaration
produced with the charge sheet it bears remark R, but does not
mention the name of K. B. Mitkar, whereas the original dying
declaration produced before the Court bears the endorsement R,
and further the name of K. B. Mitkar and date 31.12.2009 is
mentioned. No explanation is coming forth for the same. She
13 cri appeal 519.12
also accepts that on the date of recording the statement of
Sunita, she has not sealed it in envelop. She also admits that on
the timing of dying declaration in the figure 19, there is
overwriting, so also in word two there is overwriting and for that
she cannot assign any reason. She accepts that the doctor put
his signature at about 2.45 p.m. and at the start of recording
dying declaration the doctor had not put his signature. She also
states that, the patient was serious and was unable to talk
properly. She also states that, when she went near the patient
eight to ten persons were present there. Placing these two dying
declarations and the oral dying declarations in juxtaposition, it
would be difficult to rely on the same. The oral dying declaration
made to P.W. No. 6 and P.W. No. 7 are contrary to the dying
declarations Exhibit 19 and Exhibit 29. Exhibit 19 and Exhibit
29 are made in presence of parents and the relatives as is clear
from the statements of scribes of both the dying declarations.
Not only that, even on the dying declaration Exhibit 19 father of
the deceased/P.W. No. 6 has signed the said dying declaration.
Reading these dying declarations along with the evidence of P.W.
No. 7, the mother of the deceased wherein she states that, there
was dispute between Sunita and her family members. Sunita's
mother-in-law insulted her on the ground of domestic work.
Sunita being only daughter could not bear anything happening
against her will. Her family treated her cruelly five/six months
after her marriage. She also states that, Sunita was behaving
14 cri appeal 519.12
like a mad person and that she was fed up and committed suicide
because her family was treating her cruelly and had not sent her
for cremation of Shiva.
13. P.W. No. 5, who is the person who has doused the fire has
not supported the prosecution case. So far as acts of accused are
concerned, the accused are not family members of the deceased.
The mother of the deceased even blamed the family members and
goes to the extent of saying in cross that, deceased committed
suicide, as her mental condition was not good. She was behaving
like a mad person because of the illtreatment given by the family
members.
14. In order to pass the test of reliability, a dying declaration
has to be subject to a very close scrutiny. While appreciating
credibility of the evidence produced before the Court, the Court
has to view evidence as a whole and come to a conclusion as to its
genuineness and truthfulness. The Court has to satisfy that the
dying declaration is truthful. If there are multiple dying
declarations giving two different versions a serious doubt is
created about truthfulness of the dying declaration. If after
examining the dying declarations in all its aspects and testing its
veracity, if the Court comes to the conclusion that, it is not
reliable by itself and that it suffers from infirmities, then without
corroboration it cannot form the basis of conviction. The dying
15 cri appeal 519.12
declarations i. e. Exhibit 19, 29 and oral dying declarations made
to P.W. Nos. 6 and 7 in the instant case stand by themselves and,
there is no other reliable evidence on record by reference to which
their truthfulness can be tested. In view of the large scale
inconsistencies appearing in Exhibit 19 and 29 and oral dying
declarations made to P.W. No. 6 and 7 and absence of
corroborative piece of evidence to test the truthfulness of the
dying declarations, the dying declarations in the instant case
cannot be relied to form the sole basis of conviction.
15. As discussed above, because of the large scale infirmities
and the different versions appearing in dying declarations
Exhibit 19 and 29 and oral dying declarations made to P.W. Nos.
6 and 7 and the same being not corroborated by any evidence, the
said dying declarations in itself would not be sufficient to form
the basis of conviction.
16. In the result, we pass the following order.
O R D E R
A. The judgment and order dated 18.07.2012 passed by the
Additional Sessions Judge, Hingoli in Sessions Trial No. 111 of
2010 convicting the accused No. 1 for the offences punishable
U/Sec. 302 and 504 r/w Sec. 34 of the I. P. Code and convicting
the accused No. 2 for the offence punishable U/Sec. 504 r/w Sec.
16 cri appeal 519.12
34 of the I. P. Code is quashed and set aside.
B. Accused No. 1/Subhash Ratan Chavan and accused No.
2/Pappu Vilas Chavan are hereby acquitted of the offences
punishable U/Sec. 302 and 504 r/w Sec. 34 of the I. P. Code in
Sessions Trial No. 111 of 2010.
C. They shall be set at liberty forthwith, if not required under
any other offence.
D. Fine if deposited be refunded to the accused.
E. The appeal is accordingly allowed. No costs.
Sd/- Sd/-
[ V. K. JADHAV, J. ] [ S. V. GANGAPURWALA, J. ]
bsb/Nov. 15
