Bombay High Court
Nilesh Nvrutti Jadhav vs The State Of Maharashtra on 1 September, 2016
Bench: A.V. Nirgude
reserved
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 176 OF 2013
Nilesh S/o Nivrutti Jadhav
Aged 28 years, Occ-Business
R/o Ward No.7, Shrirampur
Tq. Shrirampur, Dist.Ahmednagar .. APPELLANT
[ORIG.ACCUSED NO.1]
VERSUS
The State of Maharashtra
Through the Police Station Officer,
Shrirampur City Police Station,
Tq. Shrirampur, Dist.Ahmednagar
[Copy to be served on Public
Prosecutor, High Court,
Aurangabad] .. RESPONDENT
[ORIG.COMPLAINANT]
...
Shri K.B.Autade,Advocate for appellant
Shri M.M.Nerlikar,APP for respondent State.
....
WITH
CRIMINAL APPEAL NO.243 OF 2015
The State of Maharashtra Through
PSI, Shrirampur City Police Station,
Shrirampur, Dist.Ahmednagar .. APPELLANT
[ORI.COMPLAINANT]
::: Uploaded on - 01/09/2016 ::: Downloaded on - 03/09/2016 00:45:05 :::
reserved
-2-
VERSUS
1] Indumati Nivrutti Jadhav
Age 55 years, Occu-Household
R/o Ward No.7, Shrirampur
Dist.Ahmednagar.
2] Vanita Mahendra Baisane
Age 29 years, Occu.Household
R/o Navgaon, Tq. & Dist.Dhule. ..RESPONDENTS
[ORIG.ACCUSED NOS.
2 AND 3]
Shri M.M.Nerlikar,APP for appellant-State
Shri K.B.Autade,Adv. for respondent nos.1 and 2.
....
CORAM:A.V.NIRGUDE &
V.L.ACHLIYA,J.
RESERVED ON : 20/07/2016
PRONOUNCED ON : 01/09/2016
JUDGMENT : [PER V.L.ACHLIYA,J.]
Both these Appeals are filed against the judgment and order
dated 13/2/2013 in Sessions Case No.36/2012 passed by Adhoc
District Judge-1 and Additional Sessions Judge, Shrirampur, District
Ahmednagar, whereby the appellant in Criminal Appeal No.176/2013
is convicted under Section 302 and 498-A of IPC and acquitted
respondents no.1 and 2 in Criminal Appeal No.243/2015.
2] Criminal Appeal No.176/2013 is preferred by accused no.1
reserved
Nilesh Jadhav against conviction. Criminal Appeal No.243/2015 is
preferred by the State against order of acquittal of accused no.2 and
3.
3] For the sake of convenience, the accused are referred as they
are described in the judgment.
4] Prosecution has approached with a case that marriage
between accused no.1 Nilesh and Jyoti (hereinafter referred as
'deceased') was solemnised on 17/4/2008. For few months, the
deceased was treated properly. Subsequently the deceased was
subjected to physical and mental harassment by the accused. Due
to continuous physical and mental harassment, the deceased had left
the house of accused no.1 and came to reside with her parents.
Subsequently, at the intervention of one Nanasaheb Gade (PW9)
social worker, the settlement was arrived. Accused no.1 executed a
bond wherein he had given undertaking that in future he would not
cause harassment and illtreat his wife and she will be treated
properly. On this assurance, Jyoti returned to her matrimonial
house.
5] On 18/7/2011, Jyoti was admitted in Sakhar Kamgar hospital
at Shrirampur with 78% burn injuries over the body. On her
reserved
admission the intimation was given to police by the Medical Officer
on duty. A.S.I. Arun Asaram Aghade (P.W.6) who was on duty with
police station Shrirampur rushed to hospital . He recorded statement
of Jyoti after seeking an opinion of the Medical Officer on duty. She
disclosed in her statement that at about 4.30 p.m. her husband i.e.
accused no.1 came to house under the influence of liquor and asked
about her extra marital relationship. On that count the quarrel took
place in between them. ig Her husband i.e. accused no.1 poured
kerosene on her person and set her ablaze. The accused no. 2 and 3
helped accused no.1 in setting her ablaze. She further disclosed that
she tried to run away from the house but she was pushed inside the
house by accused no.1. Neighbours extinguished the flames on her
body by covering blanket and brought her to Sakhar Kamgar
hospital. The statement of the deceased was treated as complaint
and on that basis, offence under Section 498-A, 307 r.w. 34 of IPC
came to be registered vide Crime No.219/2011 with police station,
Shrirampur. Subsequently the statement of deceased was recorded
by Devidas Gulab Shere, Awal Karkoon attached to Tahsil office,
Shrirampur. Thereafter, statement of deceased was again recorded
on 20/7/2011 by Subhash Baburao Kadam, Naib Tahsildar, Rahata.
After the registration of offence, police visited the spot of incident
and in presence of the panchas, drew the spot panchanama and
seized articles like burnt pieces of saree, petticoat, blouse, match
reserved
box, burnt match stick, plastic bottle etc. On receipt of the
information that Jyoti has been admitted in burnt condition, Usha
Sonawane (PW.2) mother of the deceased, Anita Sonawane (PW3)
sister of the deceased, Eknath Sonawane (PW5) father of the
deceased, Rakesh Sonawane (PW11) brother of the deceased
rushed to hospital. They enquired from Jyoti as to how she
sustained the burn injuries. She disclosed to them that accused no.1
has poured kerosene on her person and set her ablaze and in that
act, the accused no.2 and 3 helped accused no.1. On 23/7/2011,
Jyoti succumbed to burn injuries. After her death, the inquest
panchanama was drawn, her dead body was referred for post
mortem. Offence under Section 302 of IPC was added. P.I. Shriram
Moharkar (PW13) recorded the statements of father, mother, sister
and brother of deceased.
6] The accused no.1 who was also lying admitted in the hospital
and sustained burn injuries in same incident was arrested on
4/11/2011. Accused no.2 and 3 were arrested on 10/8/2011.
Muddemal property seized during the investigation was forwarded to
Chemical Analyser.
7] P.I. Jagdish Patil (PW..) conducted the further investigation
and filed charge sheet. After filing of the charge sheet case was
reserved
committed to Sessions Court. Charge under Section 302, 498-A
read with Section 34 of IPC was framed against the accused. All of
them pleaded not guilty to charge and claimed to be tried. Hence the
case proceeded against the accused.
8] In order to prove its case, the prosecution has examined 15
witnesses. The defence of the accused appears to be of total denial
and false implication at the instance of relatives of the deceased.
Accused no.1 has taken a stand that on the day of the incident
deceased poured kerosene on her person and set herself ablaze as
he had expressed his inability to purchase the ear-rings. After
hearing the shouts of Aditya, he came outside the room and saw
Jyoti engulfed in the fire. He tried to extinguish the fire. In that
process, he sustained burn injuries. His neighbours came there and
they extinguished the fire. He further stated that he was addicted to
liquor and because of that Jyoti was annoyed. Accused no. 2 and 3
have taken defence that they were not present in the house at the
time of incident.
9] On conclusion of trial, learned Additional Sessions Judge has
reached to conclusion that prosecution has failed to prove its case
against accused no.2 and 3 and ordered them to be acquitted.
However, the learned additional Sessions Judge has found the
reserved
appellant accused no.1 guilty of committing offence under Section
302, 498-A of IPC. For committing offence under Section 302 of IPC,
the accused no. 1 has been sentenced to life imprisonment and to
pay fine of Rs.1000/-, in default to suffer simple imprisonment for 3
months and for offence under Section 498-A of IPC sentenced him to
suffer rigorous imprisonment for one year. Being aggrieved by the
judgment and order of conviction, the accused no.1 has preferred the
appeal which is numbered as Criminal Appeal No.176/2013.
ig As
against the acquittal of accused no.2 and 3 the State Government
has preferred appeal which is registered as Criminal Appeal
No.243/2015. Since both the appeals are arising out of same
judgment and order, the appeals are heard together and taken up for
disposal by common judgment.
10] We have heard the submissions advanced at length by
Advocate Shri V.R.Autade, learned counsel representing the
appellant in Criminal Appeal No.176/2013 and respondents no.1 and
2 in Criminal Appeal No.243/2015 and learned APP for the State.
11] On due consideration of the evidence on record, we have no
hesitation to observe that there is no cogent, convincing evidence on
record to prove the guilt against the accused no.2 and 3. The
reasons and findings recorded by the trial Court to acquit the
reserved
accused no.2 and 3 are consistent with the evidence on record and
there appears to be no perversity in the reasons and findings
recorded by the trial Court. We therefore, found no merit in the
Criminal Appeal No.243/2015 preferred by the State Government
against the judgment and order of acquittal of accused no.2 and 3.
12] Now the next question falls for our consideration, whether the
prosecution has proved guilt against accused no.1 beyond
reasonable doubt. If we consider the overall evidence and reasons
and findings recorded by trial Court then the conviction is mainly
based upon the three dying declarations recorded by P.W.4, P.W.6
and P.W.7 vide Exh. Nos.122, 141, 152 respectively and oral dying
declarations made by deceased to members of her family i.e.
mother (PW2) and sister (PW3), father (PW5) and brother (PW11).
Although the statement of Aditya, the child witness was recorded
during the investigation as witness to the incident, the prosecution
has not examined him. Therefore, the question before us whether
the dying declarations as relied by the prosecution are of the nature
to form the sole basis to convict the accused no.1.
13] The learned counsel for the appellant has invited our attention
to all the three dying declarations and tried to convince us that there
is no consistency amongst those three dying declarations and same
reserved
suffers from inherent contradictions and inconsistencies which raises
serious doubt as to truthfulness of dying declarations. He has
argued that there are number of suspicious circumstances which
itself makes out a case to discard all the dying declarations. He has
further submitted that the oral dying declarations are not worth to be
relied. He has submitted that there are reasons to believe that
before recording the alleged dying declaration the deceased was
tutored by her family members to make such statement to falsely
implicate accused no.1 to 3. Accused no.1 had sustained 38% burn
injuries and admitted in hospital alongwith deceased. The burn
injuries sustained by the accused establishes that accused has tried
to extinguish the flames over the body of the deceased and in that
process, he sustained severe burn injuries. He has further submitted
that though the prosecution has recorded the statement of Aditya the
sole witness to the incident, prosecution has deliberately not
examined him to suppress the truth.
14] On the other hand, learned APP for the State has supported
the conviction of the accused no.1, and assailed the reasons and
findings recorded by the trial Court to acquit the accused no.2 and 3.
He has submitted that all the dying declarations made by deceased
are consistent and same can be accepted as truthful.
reserved
15] So far as the deceased died unnatural death, the fact is not in
dispute. Apart from this, there is sufficient evidence on record to
establish that deceased died on account of burn injuries. Dr.Ulhas
Gonnade (PW8) who conducted post mortem on the dead body of
the deceased has categorically stated that the deceased had
sustained 78% burn injuries and the death was result of
complications caused due to burn injuries.
16]
Now the question before us is death of the deceased was
homicidal or suicidal and if the death was homicidal, the prosecution
has proved beyond reasonable doubt that accused No.1 has caused
the homicidal death of the deceased. As discussed the entire case
of the prosecution is based upon three dying declarations made by
the deceased to P.W.4, 6 and 7 and the oral dying declarations made
to her mother and other close relatives. Section 32 of the Indian
Evidence Act is an exception to hearsay evidence and it deals with
the statements of declarations by a person, relating to cause of his
or her death or the circumstances leading to such death. Dying
declaration made by person on the verge of his/her death has a
special sanctity as it is presumed that at such solemn moment
person is most unlikely to make any untrue statement and the
shadow of death is by itself guarantee of truth of the statement of the
deceased regarding circumstance leading to his/her death. But the
reserved
dying declaration like any other evidence has to be tested by the
touch stone of credibility to be acceptable as the accused does not
get an opportunity of questioning veracity of such statement by cross
examination. Dying declaration if found to be voluntary, truthful and
free from any doubt then only it can be made sole basis to convict
the accused. The best test to be applied to guarantee the
truthfulness of the dying declaration is to seek corroboration from
other material or circumstantial evidence.
17] It is quite settled position in law when there are multiple dying
declarations and there are inconsistencies and discrepancies in such
dying declarations, it is unsafe to rely upon such dying declarations
to convict the person. It is therefore, incumbent upon the prosecution
to prove that the dying declaration as relied is untainted and truthful.
So also the Court has to be on guard that the statement of deceased
was not a result of tutoring prompting or stretch of imagination. The
Court is also expected to see that the deceased was in fit state of
mind. Only in the case wherein the Court is satisfied that the
declaration was true and voluntary, it can base its conviction without
seeking further corroboration. However, the Court has to take such
decision based upon facts of the case before it. When it is found
that contradictory and inconsistent stand was taken by the deceased
himself or herself in different dying declarations, then as a rule of
reserved
prudence, Court should not accept such dying declaration and if
situation demands, insist for corroboration from other evidence
brought on record.
18] Keeping in mind the settled position in law as discussed
above, we proceed to appreciate the submissions advanced by both
the sides. Learned counsel for the petitioner has assailed the
conviction of accused mainly on the ground that there is no
consistency amongst the various dying declarations made by the
deceased and there are number of suspicious circumstances which
raises serious doubt as to truthfulness of dying declarations of
deceased recorded by P.W.4, 6 and 7. He has pointed out that the
close relatives of the deceased were present in the hospital and met
her immediately after her admission and before recording her dying
declarations. Therefore, the probability of the deceased being tutored
to make such declaration and to falsely implicate the accused cannot
be ruled out. Whereas, it is the contention of the learned Additional
Public Prosecutor that there is no inconsistency in the dying
declarations made by the deceased.
19] Prosecution has heavily placed reliance upon the testimony of
A.S.I. Arun Aghade (PW6) who has recorded the first dying
declaration which is at Exh.37. Admittedly, the incident was occurred
reserved
on 18/7/2011 at about 4.30 p.m. and thereafter brought to hospital
in a burnt condition. P.W.6 has deposed that after receiving the
message from Sakhar Kamgar hospital about admission of Jyoti in
burnt condition, he visited hospital at about 5 p.m. and met Medical
Officer. The Medical Officer told him that Jyoti was in a position to
make statement. He therefore, recorded her statement wherein she
has stated that at about 4.30 p.m. her husband had come to house
under the influence of liquor and asked her about her extra marital
relations and on this count, quarrel had taken place between them.
At that time, her husband poured kerosene on her person from bottle
and set her on fire. She further told him that sister and mother of
accused no.1 helped him and her neighbours tried to extinguish fire
by covering her with blanket and brought her to Sakhar Kamgar
hospital.
20] In the cross examination, he deposed that the information
about admission of Jyoti was received from hospital at about 5 p.m.
when he reached there, the treatment had already started. He
admitted that in the dying declaration Exh.37 he has not mentioned
the time of recording statement. He further admitted that the thumb
impression which appears on Exh.37 he has not attested the same
as that of deceased. He has admitted that in dying declaration
Exh.37 it is not mentioned that for the purpose to set Jyoti on fire, the
reserved
accused 2 and 3 helped accused no.1. He denied the suggestion that
the portion marked "A" in the dying declaration to the effect that "the
accused 2 and 3 helped accused no.1" was subsequently entered in
the dying declaration on the instructions of the father of the
deceased. He admitted that while recording statement deceased
has disclosed to him that accused no.1 also sustained burn injury in
that incident and admitted in the adjacent room. However, this fact
though stated by the deceased still he has not recorded the same in
Exh.37. He admitted that accused no.1 was lying admitted in the
adjacent room and undergoing treatment on account of burn injuries
and recorded his statement. He further deposed that he remained in
hospital upto 6 p.m. and during that period the relatives of the
deceased were not present in the hospital. He admitted that he had
not taken any station diary entry about recording of statement of
deceased.
21] Thus, if we consider the testimony of P.W.6 who recorded the
dying declaration within few hours after the incident then it is highly
unsafe to base conviction on such dying declaration. If the intimation
was received at 5 p.m. from hospital then it was not possible for
P.W.6 to be present in hospital at 5 p.m. It has come on record that
he has omitted to record some of the facts disclosed to him by
deceased. He has categorically admitted that deceased told him that
reserved
her husband accused no.1 also sustained burn injuries and lying
admitted in adjacent room, however, he has not recorded the same
in the dying declaration Exh.37. He has admitted that he has not
made the endorsement below thumb impression that the thumb
impression of deceased. The form in which the dying declaration
(Exh.37) recorded clearly reflects that the dying declaration was not
recorded in exact words of the deceased. It has been recorded in
the manner in which the police records the statement under Section
161 of Cr.P.C. It is apparent from the face of the dying declaration
Exh. 37 that role attributed to accused 2 and 3 in the incident has
been subsequently introduced and interpolated. It is clearly visible
from face of dying declaration Exh.37 that the entire sentence "tyani
madat keli" i.e. the accused no.2 and 3 helped the accused no.1 in
setting her ablaze was subsequently introduced and incorporated. If
we read the dying declaration Exh.37 by excluding the said words
then what was disclosed to P.W.6 was that accused poured
kerosene on her person from the bottle and set her ablaze and her
neighbours brought her to hospital. It is apparent from the face of
record that the words that "her mother in law and sister in law has
helped the accused" has been subsequently introduced/added in the
dying declaration.
22] P.W.6 has not mentioned in Exh. 37 as to time at which he
reserved
started recording of dying declaration and concluded the work of
recording. The endorsement made in the margin in the dying
declaration Exh.37 reflects that the Medical Officer has mentioned
below his signature the time as 5.30 p.m. at which he made
endorsement/certificate. There is no endorsement recorded at the
end of the dying declaration by the Medical Officer to the effect that
the deceased was found in a fit state of mind throughout recording of
dying declaration. P.W.6 has deposed that he visited the hospital at 5
p.m. and after Doctor told him that patient was fit to make statement,
immediately thereafter he recorded the statement. If we consider
the testimony of P.W.6 in the light of the endorsement of Doctor then
by no stretch of imagination it can be stated that work of recording of
dying declaration started before 5.30 p.m.
23] Thus taking into consideration the overall evidence on record
the dying declaration Exh.37 cannot be treated as truthful and form
the basis to convict the appellant.
24] The second written dying declaration claims to be recorded by
Devidas Shere (PW7) on 18/7/2011. At relevant time he was working
as Awal Karkun with Supply Department of the State Government.
He has deposed that on 18/7/2011, the Tahsildar gave letter to him
and asked to record statement of patient lying admitted in hospital.
reserved
He therefore, visited Sakhar Kamgar hospital. He reached there at
about 7.40 p.m. Doctor gave endorsement to the effect that
deceased was in fit condition to make statement. Thereafter he
recorded statement of Jyoti in question answer form. He deposed
that Jyoti told him that her husband used to come to house after
consuming liquor and therefore, there used to be quarrel between
them. He further told him that her husband was suspecting her
character and abusing her. She further told him that incident had
taken place on 18/7/2011 at 3.30 p.m. Her mother in law and sister
in law i.e. accused 2 and 3 caught her hands and her husband set
her on fire by pouring kerosene. He recorded the fact as stated by
Jyoti and thereafter read over the contents of her statement and then
obtained thumb impression of her left hand on that statement. After
recording of the statement, Doctor made endorsement. He deposed
that Exh.43 is the same dying declaration which he recorded.
25] In his cross examination, P.W.7 admitted that the letter Exh.41
was received after recording dying declaration. The time of receipt of
letter has not been mentioned. The receipt of letter Exh.41 has not
been recorded in inward register. He further deposed that carbon
copy of the statement of Jyoti was not taken out at the time of
recording of her statement. He admitted that in the dying declaration
Exh. 43 the figure "9" has been over written. He admitted that in the
reserved
dying declaration Exh.43 he has not mentioned that Jyoti told him
that her husband set her on fire. He denied the suggestion that he
has made overwriting in dying declaration Exh.43. He denied the
suggestion that the over-writing was made after applying whitener.
However, when his attention was invited to some portion of dying
declaration Exh.43, then he put forth the explanation that the portion
of his signature and date appears to be dark due to folding of paper.
He deposed that only one thumb impression of the deceased was
obtained on Exh.43. He denied the suggestion that three thumb
impressions of deceased were obtained at three places on Exh.43.
He admitted that below the thumb impression he has not mentioned
that the thumb impression as that of deceased. He further deposed
that he met Medical Officer at about 7.40 p.m. He further deposed
that he was not aware that accused no.1 was also lying admitted in
the hospital and family members of Jyoti had met her before he
reached there and recorded her statement.
26] We have thoroughly scrutinized the dying declaration Exh.43
in the light of testimony of P.W.7 It is apparent from the face of the
dying declaration Exh.43 that some overwriting has been made in
respect of time at which P.W.7 started recording of dying declaration.
There is overwriting as to figure "9". On the reverse side of the dying
declaration Exh.43, there appears to be three thumb impressions. It
reserved
appears that P.W.7 has made his signature at the end of dying
declaration over the portion of thumb impression. Application of
whitener is visible from the naked eye over the portion where P.W.7
has recorded the date below his signature. No endorsement find
place on Exh. 43 to the effect that Jyoti was examined by Medical
Officer and certified to be fit to make statement and thereafter, the
work of recording of statement was started.
27]
If we look into the contents of the dying declaration Exh.43,
then deceased has disclosed the time of incident as 3 to 3.30 p.m.
on 18/7/2011. So far as narration of incident of setting on fire, she
has deposed that her husband poured kerosene and her mother in
law and sister in law i.e. accused 2 and 3 caught her hands. There is
inconsistency about the time at which incident has occurred. As per
the prosecution case, the incident was occurred at about 4.30 p.m. in
the house of the deceased. As per P.W.5 the deceased disclosed
that incident was occurred at about 4.30 p.m. whereas in the second
dying declaration the deceased has mentioned the time of incident as
between 3 to 3.30 p.m. In dying declaration Exh.37 deceased has not
attributed any active role played by accused 2 and 3 in setting her on
fire. However, in dying declaration Exh.43, she attributed active role
played by accused no.2 and 3 and stated that they had caught hold
her hands and accused no.1 poured kerosene. As discussed, the
reserved
word "accused 2 and 3 helped the accused" found to be interpolated
in the dying declaration Exh.37. In the dying declaration Exh.43, it is
not disclosed as to how she was actually set on fire. She has only
deposed that accused no.1 poured kerosene and accused no.2 and
3 caught hold her hands. There are 3 thumb impressions find place
at the bottom of the dying declaration Exh.43. The application of
whitener is also visible. The certificate of the doctor find place at the
end of the dying declaration. There is no evidence to show that the
Medical Officer examined the deceased before the work of recording
of dying declaration by P.W.7. In this view of the matter, the second
dying declaration also not beyond suspicion and can be safely
relied as truthful dying declaration to form basis to convict the
appellant.
28] The prosecution has relied upon third written dying declaration
which was recorded on 20/7/2011 by Shri S.B.Kadam, Circle Officer,
Rahata. The dying declaration recorded by P.W.4 is at Exh.32. He
deposed that on 20/7/2011, he was posted as Circle Officer Rahata.
On that day, he received message from Tahsil office that one Jyoti
Nilesh Jadhav has been admitted in PMT hospital and instructed to
record her dying declaration. He therefore, went to Pravara hospital
at about 11.30 a.m. Medical Officer on duty told him that Jyoti was in
a position to give statement. He therefore, recorded her statement by
reserved
using printed form which he carried with him. He further deposed that
he recorded the statement in question and answer form. She told him
that she sustained burn injuries due to pouring of kerosene on her
person. She further told him that her husband had come under
influence of liquor and poured kerosene on her person. In response
to his query as to who were present at the time of incident, the
deceased replied that her mother in law and sister in law both were
present in the house. ig She further told him that she could not
conceive child therefore, her husband set her on fire. In response to
another question, she told him that her relations with her in laws were
not cordial and she was frequently beaten. She further told him that
after 1½ hour after the incident, she was admitted in hospital, as the
vehicle was not available. In response to query as to whether she
had any grievance about the incident, the deceased told him that she
had complaint against her husband, mother in law and sister in law.
29] In the cross examination, P.W.4 has deposed that he kept one
photo copy of the dying declaration as office record. It appears
from record that during the course of examination at the request of
the Defence Counsel, the photo copy of Dying declaration kept as
office record by P.W.4 has been taken on record and marked as
Article "B". He admitted that in original statement i.e. dying
declaration Exh.32 the time at which he started recording of dying
reserved
declaration has not been mentioned, however, same find place in
the photo copy Article 'B'. He admitted that there is overwriting as to
word "Ghetale" infront of word "Takale" in answer given in response
to question no.10. In the further cross examination, he denied the
suggestion that word "Patine" i.e. by "husband" has been
subsequently recorded in dying declaration Exh.32 as answer given
in response to question no.10. He admitted that the answer recorded
in response to question no.8 one word was scored out but unable to
recollect as to what was written there. He admitted that there is no
endorsement made to effect that he had explained the contents of
her statement to Jyoti (deceased) after recording her statement and
she found the same to be recorded as per her statement. He further
admitted that the contents of certificate recorded above his signature
are in printed form and he has signed below the printed certificate.
He admitted that Doctor has not recorded in his hand writing that
patient was in fit state of mind to make statement. He admitted that
time of recording statement has been mentioned below his signature
on Exh.32 but same is not find place in the photo copy of same dying
declaration i.e. Article "B". He admitted that the thumb impression of
maker of the statement is not attested by him. He deposed that he
has not received any written instruction to record the dying
declaration and instructions to record dying declaration was received
to him through phone call made by the Peon from Tahsil office.
reserved
30] We have carefully perused the dying declaration recorded by
P.W.4 which is at Exh.32. It is recorded in question and answer
form. There is no endorsement on the dying declaration Exh.32 to
reflect that before recording of dying declaration the deceased was
examined by Medical Officer and certified to be in a fit state of mind
to make statement. It is apparent from the dying declaration Exh.32
that the answer given in response to question 1 and 2 i.e. personal
information about the deceased the contents were recorded by using
different pen. The ink or the pen used for recording the entire dying
declaration Exh.32 was same except the ink or pen used for
recording the contents as to answer given in response to question
no. 1 and 2. In response to question as regards the actual incident,
I.e. as to how the incident occurred, the deceased has disclosed that
her husband i.e. accused no.1 came in drunken condition and poured
kerosene on her person. In response to answer to question no.9 as
to who were present at the time of incident, the deceased has stated
that her mother in law and sister in law i.e. accused 2 and 3 were
present. In response to question as to why such incident was
occurred, the deceased has stated that as she could not conceive
child therefore, her husband poured kerosene. It is very significant to
note that in answer to question no.10 and 11 it is visible from the
naked eye that the word "Patine" i.e. by (husband) has been
reserved
subsequently written. It is also pertinent to note that there was one
word written as "Ghetale" preceding the word "Patine" and
succeeded by the word "Takale" which was scored out If we ignore
the word interpolated as by "Patine" i.e. "husband" and the word
scored out exist as "ghetale" then sentence will have to be read as
"Mulbal Hot Nahi Mhanun Rokel Otun Ghetale" i.e. the deceased
had made statement that as she could not conceive therefore she
herself poured kerosene on her body. There is a great significance
attached to introduction of the word "Patine" i.e. by husband and
scoring the word "ghetale" i.e. poured by herself and adding the
word "Takale" i.e. poured herself in Exh.32.
31] As per disclosure made in Dying declaration Exh.32, the
deceased was brought to hospital after 1½ hour after the incident
and that too by autorickshaw. As per the fact disclosed in the earlier
Dying declaration Exh. 37, the incident was occurred at 4.30 p.m.
and she was brought to hospital in ambulance. As per P.W.7 he
reached to hospital at 5 p.m. and started the work of recording the
dying declaration Exh. 37, while the treatment was already started.
As discussed in the foregoing para in the original copy of dying
declaration Exh.32 there is no nothing made in margin of the dying
declaration Exh.32 about time at which work of dying declaration
started and time at which work of dying declaration was over.
reserved
Whereas on the photo copy of same dying declaration which has
been produced before the Court and marked as Article "B" the time
has been mentioned. Similarly, on the original copy of the dying
declaration Exh.32 below signature of P.W.4 the date and time at
which P.W.4 concluded the work of recording of dying declaration
recorded as 11.55 a.m. However, no such date and time mentioned
on photo copy of same dying declaration produced at Exh.B. No
satisfactory explanation has been put forth as to why photo copy of
the original dying declaration produced by him as Article "B" not
tallies with original Dying declaration Exh.32.
32] If we consider the fact regarding the actual incident and the
manner in which incident occurred, there appears to be
inconsistencies in the three dying declarations relied by prosecution.
There is material variance as to how the incident was actually
occurred. In the dying declaration at Exh.32, which is first in time
recorded on 18/7/2011 at about 5 p.m. the deceased has stated the
time of incident as 4.30 p.m. on 18/7/2011. It is disclosed that at
about 4.30 p.m. her husband came to house in drunken condition
and told her that she had an affair with someone and asked her to
disclose the names of those persons otherwise he will kill her and
therefore, he poured kerosene from the bottle, ignited the match stick
and set her on fire. She therefore, came out of the house and her
reserved
neighbours extinguished the flames by putting blanket around her
and brought her to hospital. As discussed in first dying declaration,
she has not attributed any active role played by accused no.2 and 3
in incident of setting her on fire. The word that accused no.2 and 3
have helped him found to have lateron introduced in the dying
declaration Exh.37.
33] If we consider the second dying declaration recorded on same
day, at about 7.40 p.m. which is at Exh.43, then she has given the
time of incident as in between 3 to 3.30 p.m. So far as narration of
actual incident is concerned, she has disclosed that accused no.1
poured kerosene on her and accused no.2 and 3 caught hold her
hands. Therefore, there is material discrepancy as regards the time
of incident and the manner in which incident was occurred. The role
of active participation in commission of offence by accused no.2 and
3 has been introduced in the second dying declaration. Therefore,
there is not only the material discrepancy and inconsistencies in two
dying declarations recorded at short interval but it also exposes the
tendency on the part of the deceased to exaggerate and implicate
the family members other than her husband. The role attributed to
accused no.2 and 3 of participation in actual incident is by way of
improved version in the second dying declaration. In order to get
both the dying declarations as consistent, to each other the attempt
reserved
has been made lateron by introducing the word "Madat Keli" i.e.
helped by accused no. 2 and 3 in the first dying declaration.
34] If we consider the third dying declaration which is at Exh.32
then the third dying declaration is in complete variance with the
earlier two dying declarations. In dying declaration Exh.32 which is
recorded on 20/7/2011, entirely different cause has been assigned
for setting her on fire. In the third dying declaration Exh.32, reason
for setting her on fire has been attributed due to the reason that she
could not conceive child and therefore, she was set on fire. In third
dying declaration, entire role of pouring kerosene and setting on fire
has been attributed to her husband. The accused 2 and 3 are
disclosed to be present in the house. It is also important to note that
the presence of accused no.2 and 3 has been recorded in response
to the question as to who else were present in the house. It is not in
response as to who else was involved in the incident.
35] As discussed, the third dying declaration is also not beyond
suspicion. It is pertinent to note that in the third dying declaration,
the deceased has disclosed that she was brought to hospital after 1½
hour, of incident and that too in autorickshaw. As per earlier dying
declaration the deceased has disclosed that she was brought to
hospital in ambulance and that too immediately after the incident. If
reserved
we accept the third version to be correct version about time of
incident then if the incident was occurred at 4.30 p.m. and brought to
hospital after one and half hour after the incident then she was
admitted in hospital on and after 6 p.m. If that is so, there was no
question of recording her dying declaration by P.W.6 at 5 p.m. on
18/7/2011 and her examination by Doctor at 5.30 p.m. All the three
dying declarations are found to be in material variance and full of
inconsistent statements of deceased, therefore, no reliance can be
placed on such dying declarations to form basis to convict the
accused. Apart from this, the dying declarations Exh.43 and 32
bears no endorsement to the effect that before obtaining thumb
impression of deceased, same were read over to deceased and
admitted by her to be recorded as per her narration. Moreover, the
first dying declaration is not recorded in verbatim as to what the
deceased has disclosed. It has been recorded in narrative form as if
the Officer was recording her statement under Section 161 of Cr.P.C
It has come on record that P.W.6 has omitted to record certain facts
which were disclosed by the deceased.
36] It is pertinent to note that accused was addicted to liquor. As
per the defence taken by the accused and circumstances appearing
against him and explained in his statement recorded under Section
313 of Cr.P.C. no such incident as narrated by the deceased in her
reserved
dying declaration was occurred. According to him, on the date of
incident he was out of home and could not come to home for lunch
due to his work. Jyoti i.e. the deceased made phone call to him and
asked to come to home for lunch. However, as he was busy in his
work, he could not come to home. At about 3.30 p.m. Jyoti again
called him on phone. Therefore, he went to his house. After lunch,
Jyoti asked him as to whether he had purchased ear-rings for her. He
told her that he had no money to purchase the same. After some
time, he heard shouts of Aditya. He therefore, came out of room and
saw Jyoti engulfed in the fire. He tried to extinguish the fire and in
that process, he sustained burn injuries. He further stated that the
neighbours came there and extinguished the fire and both of them
were brought to hospital. He further stated that his wife Jyoti herself
set on fire as he was addicted to liquor and due to his addiction, Jyoti
was annoyed. He further stated that at the time of incident, his
mother and sister were not present in the house and all of them were
implicated in the false case.
37] The defence of accused appears to be probable. The fact is
not in dispute that the accused no.1 sustained the burn injuries in
same incident and simultaneously admitted in the hospital. He was
found to have sustained 38% burn injuries. The incident was
occurred on 18/7/2011. As per the arrest panchanama accused was
reserved
arrested on 4/11/2011 after he was discharged from hospital.
Accused no.2 and 3 have taken specific defence that at the time of
incident they were not present in the house. Accused no.2 and 3
were arrested on 10/8/2011. P.I.Jagdish Patil (PW 12) the
investigating officer who arrested the accused has deposed in his
cross examination that before arrest, the accused no.1 was admitted
in hospital. He further admitted that accused no.1 sustained the
injuries in same incident and addicted to liquor. Dr.Satpute (PW15)
the Medical Officer attached to Sakhar Kamgar hospital Shrirampur,
also admitted in cross examination that accused no.1 was admitted
at 5.15 p.m. in the hospital and he had sustained burn injuries to the
extent of 38%. The M.L.C. papers regarding admission of Jyoti i.e.
the deceased produced at Exh.54 reflects that time of giving history
of the incident, was disclosed as 4.30 p.m. and she was brought to
hospital by her father Eknath Sonawane i.e. P.W.5. Therefore, the
defence story that deceased herself set her ablaze by pouring
kerosene on her person due to her husband addicted to liquor cannot
be ruled out. Under the facts and circumstances of the case and
evidence on record and more particularly, the tendency on the part of
deceased to exaggerate and improve her version after her relatives
such as father, mother met her, the possibility of deceased being
tutored to implicate the accused cannot be ruled out.
reserved
38] Besides three written dying declaration, the prosecution has
relied upon the testimony of Usha Sonawane (PW2) the mother of
the deceased, Anita Sonawane (PW3) sister of the deceased and
Eknath Sonawane (PW5) father of the deceased, Rakesh (PW11) is
brother of deceased. Prosecution has claimed that the deceased had
made oral dying declaration to said witnesses. Usha mother of
deceased has been examined as P.W.2. So far as the incident dated
18/7/2011 is concerned, she has deposed that at about 4.30 p.m.
one woman called her on telephone from Shrirampur and inormed
that her daughter was set on fire. Therefore, she alongwith her
family members came to Sakhar Kamgar hospital at Shrirampur.
When she enquired from her daughter as to how incident had
occurred, she told her that her mother in law and sister in law caught
her hands and her husband poured kerosene on her person and set
her on fire by match stick and when she tried to run away she was
pulled back in the house by her husband. She further disclosed that
accused have set her on fire as he had suspicion about her character
and she could not conceive the child. In the cross examination, she
deposed that she alongwith her family members reached hospital at
about 5.15 p.m. She admitted that no complaint was given in respect
of harassment against accused persons before the incident dated
18/7/2011. She admitted that Aditya is son of sister in law of Jyoti
and he was residing in same house. She further admitted that two
reserved
months prior to the incident, Jyoti had come to her house and at that
time, her mother in law accompanied her. Both of them stayed in
their house for one day. Prior to incident, no complaint was lodged
against accused about harassment. She deposed that her statement
was recorded two days after the death of Jyoti. Thus from the
testimony of P.W.2 it reveals that family members of deceased were
present in the hospital at about 5.15 p.m. i.e. before recording of her
dying declaration by P.W.6 and 7.
ig Therefore, the possibility of
deceased being tutored to make statement to implicate the accused
no.1 to 3 cannot be ruled out in the facts and circumstances of the
case. Further from the testimony of P.W.3 it is evident that there was
no serious dispute or strained relationship with deceased as that of
her husband and mother-in-law.
39] The testimony of Anita (PW3) refers to the incident prior to the
date of incident. She admitted in cross examination that she visited
the house of deceased 8 days prior to the incident as her husband
i.e. accused no.1 got seriously injured in motor cycle accident. She
deposed in cross examination that she came to know about the
incident at 4.30 p.m. and within ½ hour, she went to hospital and met
Jyoti. However, lateron she changed her version and stated that she
remained at home and other family members visited the hospital.
Thus, if she had not visited the hospital there is no question of any
reserved
disclosure being made to her by Jyoti. In this view the testimony of
this witness is of no use to prove the case of the prosecution.
40] Prosecution has examined Eknath Sonawane (PW5) father of
the deceased. So far as the fact relating to incident, he has deposed
that on 18/7/2011, after he received the message that Jyoti was set
on fire, he visited the hospital alongwith other family members and
found Jyoti admitted in hospital. She told him that her husband had
come to house under influence of liquor. He abused and beaten her.
Her sister in law and mother in law who were present in the house,
caught her and her husband poured kerosene on her person and
ignited fire by match stick. She tried to run away from house but her
husband pushed her inside the house. In the cross examination, he
deposed that when they reached and met Jyoti, there was no
Constable present in the hospital. He further deposed that his
daughter Jyoti was shifted to hospital at Loni within a short period
from Kamgar hospital at Shrirampur. He further deposed that Jyoti
had not disclosed to him anything about burn injuries sustained by
her husband Nilesh and he has not disclosed any fact to this effect
to police.
41] On the same line, prosecution has examined Rakesh
Sonawane (PW11) the brother of the deceased. He deposed that on
reserved
18/7/2011, his maternal uncle Kailash Khairnar made phone call to
Jyoti. At that time, accused Nilesh asked her from which paramour
of her she received phone call.
42] In our view, the testimony of such close relatives of the
deceased cannot be safely relied to base the conviction. Due to
death of deceased, they were annoyed. Therefore, the possibility of
accused being falsely implicated by them cannot be ruled out. Prior
to the incident, there was no police complaint lodged against the
accused. There is no evidence to show that there was any motive for
accused to have committed the murder of the deceased. If we
accept version of P.W.2 that deceased alongwith her mother in law
visited their house eight days prior to the incident and they stayed
together for one day at her house. If there was any ill treatment and
harassment, to deceased at the hands of accused no.1 and her in
laws, then certainly the accused no.2 would not have visited the
house of P.W.2 with Jyoti and stayed there for one day. The defence
of the accused appears to be probable. Since the accused no.1 was
addicted to liquor, the possibility of deceased being frustrated and
having committed suicide, appears to be more probable. Sustaining
38% injuries by accused no.1 in the incident is the another
circumstance which favours the accused to dispel the allegation that
he set his wife ablaze.
reserved
43] In this view, the testimony of the other witnesses such as the
Medical Officer and the investigating officer are of no use to prove
the guilt against the accused. The detection of kerosene on the burnt
pieces of clothes of deceased is quite natural and no way operate as
circumstance against accused. Existence of traces of kerosene on
the clothes of deceased or accused no way establishes the case of
the prosecution that accused 2 and 3 caught hold the hands of the
deceased and accused no.1 poured kerosene and set her ablaze.
44] During the course of submissions, learned APP has referred
and relied upon decision of Apex Court in the case of Mohanlal
Gangaram Gehani V/s State of Maharashtra reported in 1982 (1)
S.C.C. 700 in support of his submission that if there are more than 1
statements of the deceased, then the statement made first in time be
preferred. The ruling cited have no bearing upon the facts of the
case. It is quite settled position of law that where there are more
than one dying declarations and they are found to be inconsistent
and in material variance with each other, the Court should discard all
of them. In this context, learned counsel for the petitioner has rightly
placed reliance on the decision of Apex Court in the case of Shaikh
Bakshu and others V/s State of Maharashtra reported in (2007) 11
SCC 269.
reserved
45] It has come on record that at the time of incident, Aditya the
son of sister in law of the deceased was present in the house and
police have recorded his statement. He was witness to the incident.
For the reasons best known to the prosecution, said witness though
cited, was not examined. Therefore, inference can be drawn that
prosecution has tried to suppress the truth. Prosecution is not
expected to hide anything from the Court. The job of the prosecution
is to unfold the truth. It is for the Court to assess the evidence and
arrive at a proper decision by evaluating all such evidence.
46] Thus the conclusion to which we arrive that the dying
declarations as relied by the prosecution and which have formed
basis to convict the accused are not trustworthy and suffers from
number of infirmities, the conviction of the accused no.1 is not
sustainable. The learned Judge of the trial Court has though
discarded the Dying declarations as not reliable against accused
no.2 and 3 has however, relied the same as truthful against the
accused no.1. In our view, such segregation of contents of dying
declaration is not permissible in law. Either the dying declaration as
a whole to be treated as fully truthful or to be not truthful. It cannot
be treated as partly true and partly untrue. We have therefore, no
hesitation to hold that prosecution has failed to prove guilt against
reserved
accused no.1 to 3 beyond reasonable doubt. Failure to prove guilt
against accused beyond reasonable doubt, the conviction of accused
no.1 cannot be upheld. In this view of the matter, the appeal filed by
the appellant accused no.1 deserves to be allowed and the appeal
filed by the State against acquittal of accused no.2 and 3 deserves to
be dismissed. Accordingly, we pass the following order :
ig ORDER
I] Criminal Appeal No.243/2015 filed by State against
respondents i.e. original accused no.2 and 3 is dismissed.
Bail bonds of accused no.2 and 3 stands discharged.
II] Criminal Appeal No.176/2013 filed by appellant Nilesh
Nivrutti Jadhav i.e. original accused no.1 is hereby allowed.
The judgment and order dated 13/2/2013 in Sessions Case
No.36/2012 convicting appellant-accused no.1 for offence
punishable under Section 302 and 498-A read with Section
34 of IPC is hereby set aside. Appellant-accused no.1 be set
at liberty, if not required in any other case. Fine amount if
any deposited by accused no.1, same be refunded to him.
[A.V.NIRGUDE,J] (V.L.ACHLIYA,J.)
umg/
