Baburao Shriram Kadam vs The State Of Mah
2016 Latest Caselaw 1576 Bom

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                                                    1


                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                     BENCH AT AURANGABAD 




                                                                                          
                              CRIMINAL APPEAL NO. 665 OF 2012




                                                                  
    Baburao s/o Shriram Kadam
    age  62 years, occ. Agril.,
    r/o Suki, Tq. Purna,
    Dist. Parbhani                                                            .. APPELLANT




                                                                 
    VERSUS

     




                                                  
    The State of Maharashtra
    Through Purna Police Stationig
    Tq. Purna, Dist. Parbhani                                                 .. RESPONDENT


    Mr. S.B. Ghatol Patil, advocate for appellant.  
                              
    Mr. S.P. Deshmukh, APP for the State.  
                                                          =====

                                                          CORAM :  R.M. BORDE &
                                                                     K. L. WADANE, JJ.  

                                                          DATE    :  16th APRIL, 2016. 
     
   



    JUDGMENT : ( PER R. M. BORDE, J. )

1. Appellant - original accused no. 1 is objecting to the decision

rendered by the Sessions Judge, Parbhani in Sessions Case No. 67/2011

decided on 29.10.2012 holding appellant / accused no. 1 guilty for

commission of offence punishable under section 302 of the Indian Penal

Code and, imposing sentence of imprisonment for life and to pay fine of

Rs. 1,000/- and, in default of payment of fine, to suffer imprisonment for

three months.

2. Accused / appellant Baburao alongwith his son Dnyaneshwar and

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wife Chaturabai were prosecuted for commission of offence under sections

302, 498A r/w section 34 of the Indian Penal Code and were tried by the

Sessions Judge, Parbhani in Sessions Trial No. 67/2011. Accused were

charged for committing murder of Renuka by pouring kerosene on her

person and setting her on fire. So also they were charged for subjecting

deceased Renuka to cruelty both mental and physical.

3. Prosecution case is that deceased Renuka was married to accused

Dnyaneshwar in the year 2003. Accused Baburao and Chaturabai are

parents of accused Dnyaneshwar. Since Renuka did not gave birth to child,

Dnyaneshwar married with Meena some two months prior to the incident.

It is alleged that on the fateful day i.e. on 13.01.2011 both Renuka and

Meena were sleeping in the room and at about 11.30 pm accused Baburao

and Dnyaneshwar entered the room. Accused Baburao sprinkled kerosene

on the person of Renuka and set her on fire. After sensing fire, Meena got

up and finding that Renuka is engulfed in flames, tried to extinguish the

fire. During the process she sustained burn injuries. Renuka sustained

100% superficial to deep burn injuries whereas Meena sustained 93% burn

injuries. Both were admitted to General Hospital, Parbhani on 13.01.2011

in the mid-night. Medical Officer Dr. Mete, after examining Renuka at

4.50 am opined that she was not in a state to give statement. In the MLC

forwarded to the police, similar opinion was recorded by doctor. PW5 Abdul

Wahid Abdul Sattar got Meena examined by Dr. Mete and, after securing

endorsement in respect of her physical condition, proceeded to record her

dying declaration at 4.15 am on 14.1.2011. After sometime, at about 5.35

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am, Dr. Mete certified that Renuka is in a position to give statement, as

such, Abdul Wahid Abdul Sattar recorded her dying declaration. Dying

declaration of deceased Renuka recorded by PW 5 Abdul Wahid Abdul

Sattar is treated as First Information Report whereupon crime no. 4/11 was

registered at Purna police station for offence punishable under sections 307,

498A and 494 of the Indian Penal Code. It is further case of prosecution

that Special Executive Magistrate Mr. Ashtikar, on receiving communication

from police, reached General Hospital, Parbhani and, after securing

endorsement of Medical Officer in respect of condition of Renuka proceeded

to record her dying declaration. In the dying declaration recorded by police

constable as well as Special Executive Magistrate Mr. Ashtikar,

allegations are made by her implicating her husband and father-in-law in

the crime. In the meanwhile, Meena was shifted to Government Hospital,

Nanded. On 15.1.2011, Special Judicial Magistrate Mr. Zunzare recorded

her dying declaration wherein she has alleged that her father-in-law set her

i.e. Meena and Renuka on fire due to which they sustained burns. Renuka

succumbed to injuries on 14.1.2011 at about 11.15 am whereas Meena died

due to burn injuries on 18.1.2011.

4. After completing investigation, charge-sheet was presented to the

Court. The case being triable by the Court of Sessions, was committed to

Sessions Court, Parbhani. The learned Additional Sessions Judge,

Parbhani framed charge at exh. 31 for offence punishable under sections

302, 498A r/w section 34 of the Indian Penal Code against all the accused.

Accused pleaded not guilty to the charge and claimed to be tried. Defence of

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accused is that they have been falsely implicated in the crime and are not

aware as to how the incident has happened. According to accused Baburao

- appellant herein, the incident happened accidentally whereas

Dnyaneshwar took defence that he was not present at the scene of

occurrence and the incident has happened behind his back.

5. The most vital evidence in the matter comprises of multiple dying

declarations of both deceased Renuka and Meena. It is the case of

prosecution that after the two ladies Renuka and Meena were admitted to

the hospital, information was transmitted to police. In the communication

to the police transmitted by the Medical Officer on 14.1.2011 at about 4.50

am, it is recorded that the patient (Renuka) is not in a state to give

statement. The time of admission of Renuka and Meena in the hospital is

recorded as 1.45 am in the MLC report. It appears that on receipt of the

information, police Head Constable Abdul Wahid Abdul Sattar went to the

hospital and after securing certification in respect of condition of Meena,

proceeded to record her dying declaration. PW 5 Abdul Wahed Abdul Sattar

in his deposition has stated that he received two MLCs at 4.00 am from the

hospital. After he reached the hospital, he was told by Dr. Mete that

Renuka was not in a fit state to give statement and as such, upon receiving

certification in respect of Meena, he proceeded to record her statement. On

perusal of dying declaration of Meena at exh. 57, it transpires that she has

not made allegations against any of the accused. Meena in her statement

stated that on 13.1.2011 at about 11.30 pm she and Renuka were sleeping

at home. Her husband Dnyaneshwar had gone to the agricultural field

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whereas her mother-in-law Chaturabai and father-in-law Baburao were

sleeping in the courtyard. It is stated that on receiving burn injuries ,

Renuka embraced her, as a result, she sustained burn injuries. It is further

stated that Renuka herself had set her on fire. Her mother-in-law, father-in-

law and husband admitted her to hospital. Dying declaration of Meena

has been recorded at 4.15 am. Dr. Mete has certified in respect of physical

condition of Meena. It appears that PW 5 Abdul Wahed Abdul Sattar

proceeded to record dying declaration of Renuka after getting her examined

from Dr. Mete. Dr. Mete has endorsed on examination of the patient i.e.

Renuka that she is in a fit state and her statement can be recorded. Dying

declaration of Renuka appears to have been recorded between 5.35 am to

6.00 am on 14.1.2011. In her dying declaration she has stated that since

she was not able to conceive child, her husband performed second marriage

with Meena some two months back. Her father-in-law Baburao always used

to ill-treat her so also her husband Dnyaneshwar used to beat her often. It

is stated further that on 13.1.2011, at 11.30 pm, while she was at home, her

father-in-law poured kerosene on her person and set her on fire. It is stated

that while she was engulfed in flames, Meena tried to extinguish fire and

during the process she sustained injuries. She further states that she has

been admitted to the hospital by her husband and mother-in-law. She

makes complaint against her father-in-law Baburao Kadam.

6. In the deposition before the Court, PW 5 Abdul Wahed Abdul Sattar

who has recorded dying declaration of deceased Renuka has stated that

after recording of statement of Meena was over, he wrote letter to Naib

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Tahsildar requesting him to record dying declaration of Renuka. He further

states that he went with the Tahsildar after his arrival for recording dying

declaration of Renuka (although it is typewritten as Meena in the English

version, Marathi version records name Renuka, which deserves to be

accepted because PW 5 Abdul Wahed recorded statement of Renuka after

arrival of Executive Magistrate). He further states that Renuka was not in a

position to speak and he proceeded to record statement of Meena. PW 5

admits his signature on the dying declaration as well as thumb impression

of deceased Renuka. In the cross examination, the witness has stated that

at about 4.50 am, he was told by the Medical Officer that Renuka was not in

a position to speak and, endorsement to that effect was passed on MLC.

The endorsement that Renuka was not in a position to speak was recorded

by Dr. Mete. It is further stated that he i.e. PW 5 and Tahsildar recorded

statement of Renuka simultaneously. Witness further states that he

recorded statement of Renuka between 4.15 am to 4.55 am. He shows

ignorance about time of recording of statement by Naib Tahsildar. The

witness further states that police constable Giri who was accompanying him

was the writer. Renuka was answering questions and the witness dictated

her statement to police constable Giri. He further states that he did not

secure signature of writer Giri on statement of Renuka. PW 4 Prakash

Ashtekar is the retired Naib Tahsildar who has recorded statement of

Renuka. He states in his cross examination that he received letter from

police at 7.00 am. The dying declaration of Renuka appears to have been

recorded by the Executive Magistrate between 7.45 am to 8.00 am. In the

statement recorded by Executive Magistrate, she (Renuka) states that on

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13.1.2011 at 11.30 pm while she was sleeping at home, her father-in-law

Baburao and husband Dnyaneshwar both came near her. Her father-in-law

told her that since she was not in a position to conceive child, they did not

need her. Saying so her father-in-law poured kerosene on her person and

set her on fire. At that time Meena came there and tried to extinguish fire

and, during the process, she received burn injuries. It is thus clear that in

the dying declaration recorded by Executive Magistrate the deceased

implicates her father-in-law as well as her husband. The version of PW 5

Abdul Wahed Abdul Sattar appears to be discrepant and unbelievable for

more than one reason. He states that condition of Renuka was not sound

at 4.50 am and an endorsement to that effect has been made by Dr. Mete on

the MLC report whereas surprisingly, her condition appears to be good at

5.35 am and the same medical officer certifies as regards the condition of

patient. If at all, dying declaration at exh. 58 is said to have been recorded

after arrival of Executive Magistrate as stated by PW 5 in his deposition, it

ought to have been recorded after 7.00 am however, the time of recording of

dying declaration mentioned at exh. 58 is between 5.35 am to 6.00 am. PW

5 has stated in his cross examination that he and the Tahsildar recorded

statement of Renuka simultaneously. Dying declaration of Renuka has

been recorded by the Executive Magistrate / Tahsildar between 5.45 am to

6.00 am. In the same breath, PW 5 Abdul Wahed Abdul Sattar states that

he recorded statement of Renuka between 4.15 am to 4.55 am. This also is

incorrect since the time of examination of patient mentioned in the dying

declaration by Dr. Mete is 5.35 am whereas the second endorsement on the

said dying declaration is at 6.00 am. PW 5 states that he put questions to

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Renuka which she answered and constable Giri recorded statement as

dictated by him. It is not clarified as to whether constable Giri has

recorded statement exactly as per narration of Renuka. Prosecution has not

examined constable Giri as witness nor his endorsement finds place on the

dying declaration. If at all the version of PW 5 Abdul Wahed Abdul Sattar is

to be accepted, the condition of the patient as per Dr. Mete, on

consideration of his endorsement on the MLC report at exh. 56, was not

sound at 4.50 am. If PW 5 is to be believed, his version that the statement

has been recorded between 4.15 am to 4.55 am is falsified by endorsement

on the dying declaration at exh. 58 which records the initial time of

examination of the patient by Dr. Mete as 5.35 am. Apart from this, the

version stated by Renuka in the dying declarations at exh. 58 and exh. 54

recorded by P.W. 5 Abdul Wahed the Executive Magistrate is discrepant. In

the dying declaration at exh. 58, she does not refer to the fact that she and

Meena were sleeping in the room at 11.30 pm and that her father-in-law

woke up and poured kerosene on her person and set her on fire. She states

that she was at residence at 11.30 pm and, at that time her father-in-law

came and poured kerosene on her person and set her on fire. Meena came

there and extinguished fire. In dying declaration at exh. 58, she states that

she and Meena were sleeping in the room and, at that time, her husband

and father-in-law came near her and woke her up. Her father-in-law said

that since she does not conceive child, they did not need her and saying so

he poured kerosene on her person and set her on fire. In the second dying

declaration at exh. 54, deceased implicates her husband also alongwith her

father-in-law Baburao. There is thus discrepancy in respect of actual

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occurrence of the incident apart from the fact that the version of PW 5 in

respect of recording of statement of Renuka does not inspire confidence. On

the face of discrepancies in two dying declarations at exhs. 58 and 54, dying

declaration of Meena recorded first in time at 4.15 am assumes importance.

Death of Meena also occurred in the same incident which took toll of

deceased Renuka. Both deceased Renuka and deceased Meena claim that

they were sleeping in the same room. Meena however, in her dying

declaration recorded at 4.15 am does not implicate her father-in-law or her

husband and states that burn injuries sustained by Renuka are suicidal

and self-inflicted. Dying declaration of Meena has been duly proved by PW

5 Abdul Wahed Abdul Sattar and, Dr. Mete has also deposed about her

condition at the time of recording of dying declaration. The version of two

deceased stated in two different dying declarations is conflicting with each

other. Dying declaration recorded by Executive Magistrate is after securing

endorsement in respect of condition of patient from Dr. Mundada.

Dr. Mundada has been examined as PW 3 by the prosecution. He has

stated that earlier in the morning at about 7.45 am, Naib Tahsildar and

police constable came to him. They enquired as to whether Renuka is in fit

state to give statement. He examined deceased Renuka and certified that

she was conscious and oriented. He states that initially the statement was

recorded by police constable however, again states that statement was

recorded in his presence by Naib Tahsildar Mr. Ashtikar. It is further stated

by him that during recording of statement, he i.e. Dr. Mundada, police

constable and Naib Tahsildar were present. It is further stated that police

constable went outside the ward when statement of deceased was recorded

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by Naib Tahsildar. He further states that the patient told in his presence

that she was sleeping in her house. At 11.30 pm her husband and father-

in-law entered the room, they poured kerosene on her person and set her on

fire because she was unable to conceive child. Witness as such states that

both husband Dnyaneshwar and accused no. 1 - Baburao are responsible

for death of Renuka and the act attributable to both of them is pouring

kerosene on her person and setting her on fire. The version stated by

Medical Officer in his deposition is contradictory with the version stated by

deceased in her dying declarations at exh. 54 and 58.

7. At this stage, oral dying declaration made by deceased Renuka to her

brother-in-law PW 6 Vitthal Shinde also deserves to be considered. PW 6 in

his deposition states that deceased Renuka told him that on 13.1.2011 when

she and Meena were present in the house, her mother-in-law had slept in

the hut, husband and father-in-law were sleeping out of the house. At

about 11.00 pm her husband and father-in-law entered the house, they said

to her that she was barren and she should transfer the land standing in her

name in the name of Dnyaneshwar and thereafter she was set on fire by her

father-in-law by pouring kerosene on her person. Oral dying declaration of

deceased is discrepant in respect of the statement made by deceased as

regards transfer of land standing in her name in the name of Dnyaneshwar.

The witness states that it is the father-in-law alone who has poured

kerosene on the person of deceased Renuka. The version appearing from

the deposition of PW 6 is in contradiction with what PW 3 Medical Officer,

who was present at recording of dying declaration of deceased Renuka.

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8. Apart from two dying declarations of deceased Renuka, there is yet

another dying declaration of deceased Meena recorded on 15.1.2011. In her

dying declaration recorded by Executive Magistrate PW 11 Pundalik

Zanzare, deceased Meena states that on 13.1.2011 at about 11.30 pm, she

and her sister were sleeping in the room together. Both of them were

engulfed in fire. They found that there was kerosene can lying on the

ground and her father-in-law was standing there whereas husband was

sleeping outside. She alleges that her father-in-law as set her as well as

deceased Renuka on fire. The version stated by Meena on 15.1.2011 in her

dying declaration at exh. 93 is the fourth different version of occurrence of

the incident. The version stated by deceased Meena since it relates to the

same incident and since both the sisters sustained burn injuries in the very

incident, assumes importance and shall have to be considered. It does

transpire that four different versions in respect of the incident are appearing

on the record. Version stated by Meena which is first in time exonerates all

the accused whereas the version put up by deceased Renuka in her dying

declarations at exhs 58 and 54, apart from being discrepant, is in

contradiction with the version stated by deceased Meena in the dying

declaration at exhs. 57A and 93.

9. Perusal of two dying declarations of deceased Renuka at exhs. 54 and

57 and, two dying declarations of deceased Meena at exhs. 57A and 93

reveals that there are interse discrepancies and variances. Acceptance of

either dying declaration necessarily renders others false. If in the dying

declaration the truthfulness of the narration itself is rendered doubtful, no

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reliance whatsoever can be placed on the dying declaration. Merely because

the overt act attributed to the accused is consistent in both the dying

declarations would not make the dying declarations a reliable piece of

evidence. Dying declarations of Renuka are also in variance with the dying

declarations of deceased Meena who has also sustained injuries in the very

same incident. The dying declaration has to pass the test of reliability. In

case where there are multiple dying declarations and acceptance of one

dying declaration necessarily render other dying declaration unacceptable,

no reliance can be placed on such dying declaration. In our opinion, no

reliance can be placed on the dying declarations at exhs. 54 and 58 read

with other two dying declarations by deceased Meena at exhs. 57 and 93. In

case of Khushal Rao Vs. State of Bombay reported in AIR 1958 SC 22, the

Apex Court has observed thus :

"In order to pass the test of reliability, a dying declaration has to be subjected to a very close

scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the court has come to the conclusion that the dying

declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not

reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, but from the fact that the Court, in a given case, h as come to the conclusion that, that particular dying declaration was not free from the infirmities."

The Full Bench of this Court in the matter of Ramesh Gyaoba Kamble

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Vs. State of Maharashtra reported in 2011(4) Bom.C.R. (Cri.) 42, has

observed thus :

19.4 In State of Uttar Pradesh Vs. Ramsagar Yadav, 1985 DGLS (soft) 13 : 1985 DGLS(Cri) soft 709 : A.I.R. 1985 S.C. 416 the Supreme Court observed that it is well settled as a matter of law,

that a dying declaration can be acted upon without corroboration. There is not even Rule of prudence which has hardened into a Rule of Law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of

the Court is to find out whether the dying declaration is true, if it is, no question of

corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear or convincing that the Court may, for its assurance, look for corroboration to the

dying declaration.

19.5 In Uka Ram Vs. State of Rajasthan, 2001 DGLS (soft) 602 : 2001 DGLS(Cri.) soft 375 : (2001) 5 S.C.C. 254 the Supreme court, after

considering the principle on which the dying declarations are admitted in evidence, which is

based upon the legal maxim Nemo Moriturus Praesumitur Mentire i.e. a man will not meet his maker with a lie in his mouth, observed that it has always to be kept in mind that though a dying declaration is entitled to great weight, yet it

is worthwhile to note that as the maker of the statement is not subjected to cross-examination, it is essential for the Court to insist that dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court is obliged to rule out the possibility of

the statement being the result of either tutoring, prompting or vindictive or product of imagination. Before relying upon a dying declaration, the Court should be satisfied that the deceased was in a fit state of mind to make the statement. Once the Court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as rule requiring corroboration is not a rule of law but only a rule of prudence.

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19.8 In Panchdeo Singh Vs. State of Bihar, 2001

DGLS (soft) 1458 : 2002 DGLS(Cri.) soft 484 : (2002) 1 S.C.C. 577, the Supreme court, after referring to the decision of Arvind Singh Vs. State

of Bihar, 2001 DGLS (soft) 725 : 2001 DGLS (cri.) soft 482 : (2001) 6 S.C.C. 407 and after noticing care and caution factors observed thus :

That apart from the care and caution factors as

noticed earlier the dying declaration ought otherwise to be treated as trustworthy. The issue thus becomes as to whether the dying declaration has been able to bring about a confidence thereon or not is it trustworthy or is it a mere

attempt to cover up the latches of investigation : it must allure to the satisfaction of the Court that

reliance ought to be placed thereon rather than a distrust: The confidence of the Court is the summum bonum and in the event of there being any affirmation thereto in the judicial mind,

question of any disbelief or distrust would not arise. In the event otherwise satisfied about the credibility thereof, ought to look for some corroboration, if however it is otherwise, question of requirement of a corroboration would not arise:

dying declaration alluring confidence of the Court wold be a sufficient piece of evidence to sustain

conviction.

19.9 In Laxmi Vs. Om prakash, 2001 DGLS (soft) 845 : 2001 DGLS(Cri.) soft 269 : A.I.R. 2001 S.C.W. 2481, the Supreme Court held thus :

A dying declaration, if found reliable, can form the basis of conviction. A Court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the

same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence. It is, as if the maker of the dying declaration was present in the Court, making a statement, stating the facts contained in the declaration, with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to cross-examination.

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10. It is thus settled law that on careful scrutiny of the dying declaration

if the Court is satisfied that the same is free from any infirmity and is

reliable and can be acted upon, it may form basis of conviction even if there

is no corroboration. Confidence of the Court is summum bonum and in the

event of there being any affirmation thereto in the judicial mind, question of

any disbelief or distrust would not arise. In the event however of there being

some infirmity, howsoever negligible it be, the Court unless otherwise

satisfied about the credibility thereof, ought to look for some corroboration.

In the instant matter, on consideration of various discrepancies stated as

above, the evidence in the form of various contradictory and discrepant

dying declarations do not inspire confidence and, according to us, cannot

form basis for conviction. A careful scrutiny of dying declarations is required

for the reason that the version of deceased cannot be tested since the

person is not available for cross-examination. We are of the considered

opinion that the evidence put forth by prosecution in the form of dying

declarations do not inspire confidence for holding that the appellant is the

culprit and can be held guilty beyond reasonable doubt. Serious doubt is

created as regards participation of accused in the crime.

11. In view of above, in our considered opinion, prosecution has failed to

prove the case beyond reasonable doubt and as such, the order of conviction

as recorded by learned trial Judge is not sustainable. In the result appeal is

allowed. The order of conviction and sentence recorded by the learned

Sessions Judge, Parbhani in Sessions Case No. 67/2011 decided on

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29.10.2012 is quashed and set aside. The accused shall be set free, if not

required in connection with any other offences.

    ( K. L. WADANE )                                                                ( R. M. BORDE )
          JUDGE                                                                           JUDGE

    dyb