Bombay High Court
Satish Prabhurao Deone vs The State Of Maharashtra on 4 August, 2017
Bench: S.S. Shinde
323.2013 Cri.Appeal.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.323 OF 2013
Satish s/o.Prabhurao Deone,
Age: 32 Years, Occu.: At present Nil,
R/o. Village Borol, Taluka: Deoni,
District: Latur.
[At present the Appellant is in
Harsool Central Prison, Aurangabad,
Taluka and District: Aurangabad] APPELLANT
[Orig.accused]
VERSUS
The State of Maharashtra
Through the Police Station, Deoni,
Taluka: Deoni, District: Latur RESPONDENT
...
Mr.G.A.Kulkarni, Advocate holding for
Mr.R.S.Deshmukh, Advocate for the Appellant
Ms.S.S.Raut, APP for the Respondent/State
...
CORAM: S.S.SHINDE &
S.M.GAVHANE,JJ.
Reserved on : 27.07.2017
Pronounced on : 04.08.2017
JUDGMENT: (Per S.S.Shinde, J.):
1. This Appeal is filed by the
appellant-accused, challenging the judgment
and order of conviction passed by the
Additional Sessions Judge, Udgir, dated 31st
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July, 2013 in Sessions Case No.16 of 2012,
thereby convicting the appellant for the
offence punishable under Section 302 of the
Indian Penal Code and sentenced to suffer
imprisonment for life and to pay fine of
Rs.5000/- [Rs.Five Thousand], in default of
payment of fine to suffer R.I.for one year.
2. The prosecution case in nutshell is
as under:
Archana, aged about 25 years, was
daughter of Balaji Biradar, resident of
Winchur, Tal. Bhalki, Dist. Bidar [Karnataka
State]. Five years before the last incident,
her marriage was performed with Satish s/o.
Prabhurao Deone [accused], resident of Borol,
Taluka Deoni, District Latur. Since marriage
she was residing with accused at village
Borol with her father-in-law and mother-in-
law. Her two brother-in-law, by name Manohar
and Vilas, were residing at Hyderabad. They
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were doing tailoring work. Sanjiv @ Sanju the
third brother-in-law was residing at Borol,
Taluka Deoni, separately from them. Archana
gave birth to a son by name Tejas.
3. Accused Satish was addicted to
liquor. He had illicit relations with
Balikabai, the wife of one shop owner namely
Balaji. Accused was running a shop on rent
basis, which was belonging to Balaji, the
husband of Balika. Balika is close relative
of accused and deceased Archana. It is
alleged that accused used to beat and abuse
Archana, since according to him, she was not
doing agricultural work, and also on account
of his illicit relations with Balika.
Archana used to disclose all these ill-
treatment and harassment to her relatives.
4. One month before the last incident,
accused under the influence of liquor beat to
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Archana and asked her to leave house and go
to her parents home. For about one month she
was at her parents home. 5-6 days before the
incident, accused had taken her at their
village Borol.
5. On 25th December, 2011, at about
10.00 p.m. Archana was in her house. Accused
came from outside under the influence of
liquor. She was asleep. Accused started
quarreling with her. Accused beaten her by
fist and leg blows. He drove her out from
the house and told not to reside in his
house. Archana refused to leave house and
said that, she will continue to reside in the
same house. Thereafter, immediately the
accused opened the lid of can containing
kerosene, and spread kerosene upon her
person, and set her ablaze. Thereafter,
accused himself tried to extinguish the fire.
Accused went to his brother Sanjiv. He
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informed about said incident to his brother.
The accused, Sanjiv with Umakant Balure who
happens to be friend of Sanjiv and uncle of
Archana, went at the place of incident.
Umakant Balure inquired with Archana, and she
disclosed that accused poured kerosene upon
her person and set her ablaze.
Sanjiv called a tempo of Sanjay Chafe. By
said tempo, they both taken Archana to the
Hospital at Deoni. As per advise given by
Medical Officer at Deoni, they took her for
further treatment to the Government Hospital
at Udgir. She was admitted in the Hospital,
at Udgir. Sanjiv informed incident to the
mother and other relatives of Archana. Her
relatives came in the Hospital. Archana made
oral dying declaration to her mother, and
other relatives and disclosed that at the
time of incident, accused poured kerosene
upon her person and set her ablaze.
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6. During treatment in the Hospital,
Police Naik Constable Kendre and Naib
Tahsildar visited the said Hospital for the
purpose of recording her statement. They went
to the place where Archana was kept in the
Hospital, in between 9.30 to 11.00 a.m. At
that time she was unconscious. Hence they
could not record her statement. She regained
consciousness at about 12.00 noon.
Thereafter, Police Naik Constable Kendre and
Naib Tahsildar recorded her statement,
wherein Archana disclosed that accused after
beating her poured kerosene upon her person
and set her ablaze.
7. Crime bearing No.95/2011 under
Section 307 of the Indian Penal Code, was
registered on the basis of the statement of
Archana recorded by Police. The investigation
was entrusted with P.I. Laxman Rathod. During
treatment, Archana died on 26th December,
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2012, at about 8.15 p.m. Inquest panchanam
was prepared. The dead body was sent for
postmortem examination. Dr.Bodke performed
postmortem. During postmortem, he found that
Archana had sustained 90 to 95% superficial
to deep burns upon her face, neck, stomach,
back, upper extremities, lower extremities,
over peritoneum, buttocks and all over body
except the sole of right and left foot.
Viscera was preserved. The Doctor opined that
the probable cause of death was shock due to
90 to 95% superficial to deep burns. The
Investigating Officer, during investigation,
visited the place of incident.
The panchnama was prepared in presence of
panchas. From the place of incident i.e. the
house of accused, half burnt shawl [godhadi]
of chocolate and white colour strips, yellow
colour 5 litre kerosene empty can, one match
box of chawi company having 28 sticks and 9
broken pieces of sky blue colour bangles were
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seized. On the same day accused came to be
arrested under arrest panchnama. The
Investigating Officer inquired with witnesses
and reduced their statements into writing.
He obtained map of place of incident from the
village Development Officer. He obtained
postmortem report. Lastly, after completing
the investigation, the charge-sheet was
submitted on 19th March, 2012, before the
Judicial Magistrate First Class, Deoni.
8. The Judicial Magistrate First Class,
Deoni, by its order dated 12th April, 2012,
committed the case to the Sessions Court, as
the offence under Section 302 of the Indian
Penal Code is exclusively triable by the
Sessions Court. The copies of the charge-
sheet were supplied to the accused. Muddemal
was sent with list.
9. The prosecution opened their case by
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submitting the draft charge. The Sessions
Court by going through the record came to the
conclusion that there was sufficient material
to proceed against the accused, and the
offence under Section 302 of the Indian Penal
Code is exclusively triable by the Court of
Session. Accordingly, on 21st December, 2012,
charge below Exh.18 came to be framed. The
contents of charge were read over, and
explained to the accused in Marathi. Accused
denied the charge. His written statement to
that effect is at Exh.19. Accused claimed to
be tried.
10. The prosecution so as to prove their
case beyond reasonable doubt, in all examined
10 witnesses. After full-fledged trial, the
trial Court convicted the appellant for the
offence punishable under Section 302 of the
IPC. Hence this Appeal filed by the
appellant- accused.
323.2013 Cri.Appeal.odt
11. Heard the learned counsel appearing
for the appellant-accused, and the learned
APP appearing for the respondent-State. The
learned counsel appearing for the appellant
submits that the dying declarations are not
voluntary and truthful. Archana [deceased]
was not conscious and oriented to give dying
declarations since she suffered 95% burns.
The dying declarations are outcome of
tutoring/prompting by the relatives of
Archana. The trial Court did not properly
appreciate the contention of the appellant
that the deceased Archana due to having doubt
in her mind that the appellant had illicit
relations with one Balika, and due to habit
of appellant consuming liquor, she set on
fire herself and thereby committed suicide.
It is evident from the contents of the
agreement between the relatives of the
Archana and accused that, the mother of the
deceased has accepted Rs.2 lacs from the
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appellant. It shows that the mother of
Archana and other relatives of deceased
Archana were motivated to extract money from
the appellant and his other relatives. It is
submitted that the Naib Tahsildar in his
deposition stated that, when he went to
record the statement of Archana at about
11.45 a.m. in the Hospital, she was not
conscious, and therefore, he could not record
her statement. It is submitted that the time
gap between recording of two dying
declarations, one by the Police Personnel and
another by the Naib Tahsildar is hardly 20
minutes. Therefore, it creates serious doubt
in the mind about the truthfulness and
voluntariness of the dying declarations of
Archana. The appellant tried to extinguish
the fire, and in the said attempt, he
suffered burn injuries to his hand and face,
as it is evident from the medical evidence
brought on record. The medical evidence
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clearly shows that the death was suicidal and
not homicidal. The toe impression of Archana
on the dying declaration is not attested, and
it creates serious doubt about the claim of
the prosecution that Archana was conscious to
give such statement. The learned counsel
appearing for the appellant invites our
attention to the grounds taken in the appeal
memo, and also note of arguments, which was
placed on record before the trial Court, and
also relying upon the judgment of the Supreme
Court, in the case of K.Ramachandra Reddy Vs.
Public Prosecutor1 submits that, the alleged
dying declarations of Archana are not
voluntary and truthful, and therefore, the
appellant-accused deserves to be acquitted by
giving benefit of doubt.
12. On the other hand, learned APP
appearing for respondent-State relying upon
the evidence of the prosecution witnesses,
1 1976 [3] SCC 618
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and in particular the witnesses, who were
examined to prove the dying declarations, and
also findings recorded by the trial Court
submits that the prosecution has brought on
record sufficient, cogent and credible
evidence on record, therefore, the appeal may
be dismissed.
13. We have given careful consideration
to the submissions of the learned counsel
appearing for the appellant, and learned APP
appearing for the respondent-State. With
their able assistance, we have carefully
perused and scrutinized the entire evidence
brought on record by the prosecution, and
also the defence taken by the appellant. It
appears that the prosecution examined the
relatives of Archana from the maternal side
so as to prove motive for committing the
offence of killing Archana by the appellant-
accused. It appears that the prosecution
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examined PW-1 Dr.Sachin Dasharathrao Bodke,
who performed the postmortem. He stated that
Archana died due to shock due to 90-95%
superficial to deep burns. Accordingly, he
prepared the postmortem, and viscera was
preserved in two bottles.
14. It appears that Archana made first
dying declaration before her maternal uncle
namely Umakant Balure-PW-5. He stated in his
evidence that he went at the place of
incident within half an hour at the instance
of the accused. He himself and the brother of
accused Sanjiv was shifted Archana initially
in the Hospital at Deoni, and thereafter at
Udgir. He is the friend of Sanjiv. He is
working as a Peon in Yeshwantrao Chavan
Vidyalaya, Borol, Taluka Deoni since 1992.
He knows the accused Satish. His brother
Sanjay is Peon in Yeshwantrao Chavan
Vidyalaya, Borol. Accused Satish used to
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consume liquor. Accused Satish is from his
village. On the date of incident at about
10.00 p.m., he himself and Sanjiv were taking
dinner at the house of Sanjay Deone. At that
time Satish came towards them and disclosed
that he set his wife on fire, and she is
burning. Thereafter, he himself and Sanjiv
went at the house of accused. They found that
the wife of Satish was in fully burnt
condition. He inquired with Archana about the
incident. She disclosed that Satish came at
the house at about 10 p.m. He quarreled with
her, thereafter accused Satish poured
kerosene upon her and set her on fire by
igniting match stick. Sanjiv called tempo of
Sanjay Chafe. By the tempo, he himself and
Sanjay Deone taken Archana initially in the
Hospital at Deoni. Doctor given her primary
treatment and advised to shift her at Udgir
and then shifted her to the Hospital at
Udgir.
323.2013 Cri.Appeal.odt
15. However, in his cross examination,
he stated that the patient was talking when
she was admitted in both the Hospitals. She
had disclosed history to the Doctors. At
about 11.00 to 11.30 p.m. on the same day,
they admitted her in the Government Hospital
at Udgir. At about 12.00 midnight, the
brother, mother and uncles of Archana came at
the hospital. Mother and other relatives of
Archana were with her in the Hospital to look
after her. He was at the Hospital for about
two days. He also admitted that deceased
Archana was his niece i.e. the cousin
sister's daughter.
He deposed that he stated before the
police that when accused Satish came towards
them, he himself and Sanjay Deone were taking
dinner, and accused disclosed them at the
house of Sanjay that he set on fire his wife
Archana and she was burning. However, he
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cannot assign any reason why the said
statements made before the police is not
appearing in his statement, recorded by the
police on 27.12.2011. He stated that the
appellant told them at the house of Sanjay
that before sometime his wife Archana was
burnt. He further stated that near about 25
persons were present near the Archana when
she disclosed them about the incident. He
further stated that Archana did not disclose
them how the fire was ceased. He had no
knowledge who extinguished the fire. He
stated that it is not true that Archana did
not disclose him that her husband-accused
poured kerosene upon her person and set her
ablaze by igniting match stick. He further
stated that he knows about what type of
statement was made by Archana to the police.
It appears that the trial Court while
appreciating the evidence of PW-5 Umakant
Balure observed that, though the statement of
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Archana to the PW-5 is in the form of extra
judicial confession, and same is improved
statement, still it has to be considered
minutely and cautiously with the other
evidence, so as to ascertain whether the said
evidence is credible and reliable. The trial
Court also observed about evidence given by
him, that since he is maternal uncle of
Archana, it is quite natural that he inquired
deceased Archana about the incident. It is
further observed that, it is brought on
record by the prosecution through PW-5
Umakant Balure that Archana was talking and
not unconscious, and she disclosed about the
said incident to the PW-5 Umakant Balure, and
also medical history was given by her.
16. There is another oral dying
declaration given by Archana to PW-6 Ram
Maruti Balure. In his deposition before the
Court, he stated that he is maternal uncle of
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Archana. Accused Satish was addicted to
consume liquor and he was habitual. He used
to beat Archana. He used to give
understanding to the appellant, however, he
did not listen. He further stated that the
quarrel used to take place between the
appellant and Archana on account of Balika.
When he went to the Hospital at Udgir,
Archana disclosed him that on the date of
incident the accused Satish initially beaten
her and thereafter poured kerosene upon her
person and set her ablaze.
17. During his cross examination, he
stated that Archana was his real niece. There
used to be quarrel between accused and
Archana as the accused used to remain at the
house of Balaji through out a day. There was
rumour of illicit relations between the
accused and wife of Balaji and on that count
there used to be quarrel between him and his
323.2013 Cri.Appeal.odt
wife Archana. Archana was frustrated due to
behaviour of accused of maintaining illicit
relations with Balikabai. Therefore she had
lost interest in life. He reiterated that
accused poured kerosene upon her person and
set her ablaze. However, he admitted that he
has signed the document in the form of
compromise [Exh.39], and it bears his
signature. The deed also bears signature of
his sister Janabai and her son Vinod. They
had executed the deed in favour of accused
and others. It also bears signature of Madhav
his cousin and Bharat, his brother. On
30.12.2011, a receipt was executed by his
sister and her son Vinod in favour of
brothers of accused. He is not aware about
the contents of the agreement. He stated that
it is not true to say that by the said
agreement, they took Rs.2 lacs, from the
father, mother and brothers of accused for
not implicating them in the present crime.
323.2013 Cri.Appeal.odt
The mother, father and brothers of the
accused have no concerned with the alleged
offence. He denied that so as to get more
amount from the accused, he himself and his
brother and sister have falsely implicated
the accused by stating that the accused
committed murder by pouring kerosene on her
person by setting her ablaze. He denied that
deceased Archana committed suicide as the
accused used to remain at the house of Balaji
with Balikabai continuously.
18. It appears that PW-7 Janabai and
other witnesses were examined, and they
stated in their evidence that the appellant-
accused was in habit of consuming liquor.
Archana used to tell Janabai that the accused
used to beat her frequently. The accused had
illicit relations with one Balika, and
therefore, he wanted to drive out Archana
from his house. However, in her cross
examination, she disowned substantial version
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from her police statement, and stated that
she did not tell before the police that due
to illicit relations of accused with Balika,
he committed murder of Archana. Importantly,
Janabai stated that, she was near Archana
when her statement was recorded by the Police
and the Executive Magistrate. She herself,
her sister and brother were near to her. All
of them were near the Archana and were
talking with each other. She further admitted
in her cross examination that she accepted
Rs.2 lacs, however, she stated that the
amount, which was taken from her, was
returned to her by the accused. However, she
stated that she has no any document to show
that, earlier they had given Rs.2 lacs to the
brother, father and mother of the accused.
During her cross examination by the defence
counsel, she stated that she had no knowledge
whether the accused had sustained burns over
his face, hands and palms. She does not know
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whether her daughter was fed up with the
drinking habit of accused. She was not aware
that, whether Archana was fed up with the
illicit relations of accused with Balikabai.
She was not aware that, whether Archana was
fed up with the habit of accused, and she
herself poured kerosene upon her person and
set her ablaze. She further stated that it is
true to say that due to burns Archana was not
able to speak properly. She was not speaking
fluently. She denied suggestion that so as to
extract more amount from the accused, she has
lodged the false report.
19. Upon conjoint reading of the
evidence of PW-5 Umakant Balure, PW-6 Ram
Balure and PW-7 Janabai Patil, it is
abundantly clear that the relatives of
Archana from the maternal side were
continuously present with Archana. PW-5,
Umakant Balure, stated in his evidence that,
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he took Archana to the Hospital along with
Sanjay. If the evidence of these three
prosecution witnesses is considered in its
entirety, the same is not free from doubt.
There is substance in the contention of the
learned counsel appearing for the appellant-
accused that the oral dying declarations
given to PW-3 to PW-7 deserves to be
scrutinized more carefully, since PW5 to PW-7
are the relatives and interested witnesses so
as to ensure the conviction of the accused.
20. There are two written dying
declarations at Exhibits 31 and 33. Before we
discuss about the said dying declarations, it
would be appropriate to refer to the case
papers brought on record by accused during
cross examination of PW-1-Dr.Sachin Bodke
i.e. Medical Officer. The case paper is at
Exh.24. In the said case paper initially at
about 00-15 hours on 26.12.2011 the Doctor
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had mentioned that the patient was not able
to speak clearly, hence exact history from
her was not possible. She was again examined
at about 00-50 hours. At that time there was
chocking of voice. Patient was irritable, not
able to speak properly. She was again
examined on the same day at about 9.30 a.m.
At that time she was found semi conscious
state. She was unable to speak properly. Then
he was examined at about 12.00 noon on the
same day. At that time she was responding to
verbal command. She was again examined at
4.00 p.m. on the same day, at that time she
was found conscious. She was responding to
verbal command. She was again examined at
about 7.50 p.m. on the same day. At that time
she was not responding to commands. Lastly,
she was examined at about 8.15 p.m. At that
time it was found that she is no more.
21. Upon careful perusal of the said
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case papers, it is abundantly clear that
Archana was not conscious through out and
till 12.00 noon on 26th December, 2011. The
dying declaration at Exh.33 is recorded by
the Police. We have carefully perused the
contents of the said dying declaration.
There is an endorsement of the Medical
Officer Dr.S.S.Deshpande, that patient is
able to speak at 12.00 noon on 26th December,
2011. Upon careful perusal of the contents
of the said dying declarations, Archana
stated that the appellant came to the house
at about 10.00 p.m. on 25.12.2011. At that
time she was asleep. The appellant lifted
kerosene can and threw on her person and set
her ablaze. She shouted loudly and started
running. At that time accused brought shawl
and tried to extinguish the fire. Husband
used to beat her since she was not going to
the agricultural field. Before the said
incident, husband assaulted her by stick,
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however, mother-in-law intervened and rescued
her. Because of the behaviour of the husband,
mother-in-law and father-in-law went to the
Hyderabad to reside with the elder brother of
the appellant.
22. It appears that on the said dying
declarations, thumb impression of Archana is
shown. In order to prove the said dying
declaration, the prosecution examined
Sudhakar Baburao Kendre as PW-4. He received
information from the PSO of Udgir City Police
Station on mobile phone that one Archana
Satish Deone admitted in the Hospital by
sustaining 90-95% burns and directed him to
record her statement. Thereafter, he went to
the burn ward no.4 of the Hospital. Doctor
Mr.Deshpande were present in the said ward.
He told to the Doctor that he was intending
to record the statement of patient Archana.
Doctor examined her and told that she was not
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able to give statement. Thereafter, he
returned at the Police Station. He issued
letter to the Taluka Executive Magistrate for
recording statement of the injured. Again he
went in the Hospital at about 1.00 p.m. He
asked the Doctor whether the patient was in
state of mind to give the statement. Doctor
examined the patient and told that she was
able to give statement. Accordingly, the
Doctor made an endorsement. Thereafter, he
recorded statement of Archana. At the time of
recording her statement, she disclosed that
on 25th December, 2011, as usual she went
asleep at about 10.00 p.m. her husband came
in the house from outside. Her husband poured
kerosene upon her person and set her ablaze.
She so as to save herself was moving in the
rooms, thereafter her husband extinguished
fire, by covering her with shawl. He asked
her why she was set on fire. However, she
disclosed that she was not going to do
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agricultural work. She further disclosed that
3 days prior to the incident, her husband had
beaten her. Her mother-in-law and father-in-
law had rescued her. He recorded her
statement as per her say. He read over it to
her. He obtained toe impression of her right
leg.
23. During his cross examination, he
stated that at about 9.30 a.m. when he went
to the Hospital, Archana was not in a
condition to speak. At the end of recording
of statement of Archana, she stated that she
was unable to state any more. At that time
she was not in a condition to speak more. It
appears that the thumb impression is
obtained. Near the thumb impression, he has
written as "Nishani Angtha" i.e. thumb
impression. He has not specifically mentioned
whether it is of toe or hand. He has not
mentioned that whether the toe obtained is of
the patient or of other person. He has not
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mentioned the time, when he started and
concluded the statement. He had come into
contact with Naib Tahsildar in the Hospital.
Therefore, he admitted in his cross
examination that he did not mention whether
it is of toe or hand. He has also admitted
that he has not mentioned the time of
recording of such dying declaration.
24. Upon careful perusal of the original
dying declaration at Exh.33, the impression
of thumb / toe is not attested, it appears
that, the recording of the said dying
declaration is started at 12.00 noon, however
when it was concluded is not mentioned. The
another dying declaration was recorded by the
PW-3 i.e. Naib Tahsildar. In his deposition
he stated that, he went to record the
statement of Archana in the burn ward at
11.00 a.m. on 26.12.2011. Upon his request,
Dr.Deshpande examined the patient. Upon
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examination, he told that patient was not
able to give statement. Accordingly, he
issued certificate.
PW-3, Govind Yerme, further stated
that at about 12.00 noon Police Constable
Kendre from the Hospital called him on phone
and informed that the patient regained
consciousness and requested to come in
Hospital to record her statement. He went at
the Hospital in burn ward. Dr.Deshpande
examined the patient upon his request. He
found that the patient was conscious and fit
to give statement. Accordingly, he issued
certificate on the same paper. All the
relatives and police personnel from the ward
were asked to go out from the ward.
Accordingly, they left the ward. He himself,
patient and Doctor were present in the ward.
He saw that the patient was moaning. He
informed to the patient his name, post and
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his intention to record her statement. She
consented to record her statement. He asked
her name, village, her husband's name and his
occupation to the Archana. She stated that
her name as Archana and her husband's name as
Satish, and also stated that she has one son.
He asked her about the occupation of her
husband, and she stated as labourer. He
stated that he asked her why she was brought
in the hospital, she stated that due to burns
she was brought in the hospital. When he
asked her about the incident, she stated that
her husband started beating her by fist and
leg blows, and he was telling her that he was
not willing to reside with her. But she was
intending to reside with him. Thereafter, her
husband suddenly poured kerosene upon her
person and set her ablaze. She further
disclosed that her husband extinguished the
fire. He asked whether there used to be
quarrel between them, thereupon she replied
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that there used to be quarrel on trifle
ground. Her husband was saying that she was
not going in the agricultural land to do
work. On that count three days before the
incident, her husband had raised quarrel with
her and was beaten. At that time her mother
in law pacified the quarrel. He asked her
whether any other person was in the house at
the time of incident. She replied that her
father-in-law and mother-in-law were at
Hyderabad. He asked her whether she want to
tell any more; she replied in negative.
Thereafter, he obtained her thumb impression
on her statement. Her fingers of both the
hands had sustained burns, therefore, he
obtained her toe impression of left leg.
25. During his cross examination, he
stated that the certificate of Doctor is in
his handwriting. The Doctor's name and post
is also written by him. The Doctor made
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endorsement before he started recording the
statement. The endorsement by Doctor is in
English made after he reduced the statement
in writing. He does not know why the Doctor
has made overwriting in the endorsement. He
did not obtain his endorsement on the last
page. Some relatives were present in the ward
when he went in the ward. Kendre Constable
was also in the wards when he went in the
ward. He did not ask Constable Kendre whether
he had recorded statement of the patient. He
stated that the patient has not specifically
informed the substance by which her husband
set on fire. She has not specifically stated
that her husband set her on fire. She was not
aware about who had brought her in the
hospital. He did not ask her question how and
by what means her husband extinguished the
fire. He did not ask her whether any other
person came at the place of incident, during
or after the incident. The patient was not
323.2013 Cri.Appeal.odt
semi conscious. He cannot firmly say whether
she was conscious or semi conscious in
medical terminology. Both the thumbs had
sustained burns, therefore, it was not
possible to obtain thumb impression of either
hand. He has not made separate endorsement
after the signature of the patient that the
statement was written as per the say of the
patient and she admitted its contents. He
stated that at about 12.30 p.m. he started
recording the statement. This is the first
dying declaration recorded by him as Naib
Tahsildar.
26. Upon reading the contents of the
certificate at Exh.30, there is endorsement
of the Medical Officer at 11.10 a.m. that it
is not possible to record dying declaration
due to unconscious state. Upon perusal of the
dying declaration at Exh.31 recorded by the
PW-3 Naib Tahsilar, it appears that it is
323.2013 Cri.Appeal.odt
written that patient was able to speak during
the period 12.20 to 12.45 p.m. There is
signature of the Medical Officer. However,
PW-3, Naib Tahsilar, has stated in his
evidence that the said endorsement is written
in his hand writing. If really the Medical
Officer had given endorsement prior to
recording of the statement, there was no
question of mentioning in the said
endorsement that patient was able to speak
during the period from 12.20 to 12.45 p.m.
The said endorsement appears to have been
made by the Naib Tahsildar/Executive
Magistrate himself, and thereafter, signature
of the Medical Officer appears to have been
obtained. As already observed, the dying
declaration recorded by the Police Personnel
is at Exh.33 wherein the endorsement of the
Medical Officer given is at 12.00 noon. It
means that the said Police Officer started
recording of the dying declaration after
323.2013 Cri.Appeal.odt
12.00 noon and immediately the Naib Tahsildar
started recording of the dying declaration at
12.20 p.m. Therefore, keeping in view the
discussion in the foregoing paragraphs, it
appears that, PW-5 accompanied Archana in the
Hospital on 25th December, 2011, immediately
after the incident had happened. Thereafter,
relatives i.e. PW-5 to PW-7 and other
relatives were continuously present with
Archana as it is evident from the evidence of
PW-7, that even while recording the statement
of Archana by Naib Tahsildar i.e. PW-3 and
PW4, the relatives were present. Though it is
denied by PW-3. Secondly, the medical history
shows that the health of Archana was not
stable till 11.10 a.m., the Naib Tahsildar
went to record her statement, she was not
conscious. Thirdly, the endorsement given by
the Medical Officer at Exh.31 i.e. dying
declaration recorded by PW-3 is in the
handwriting of the Naib Tahsildar, and if
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really such endorsement was given in the
beginning of recording of the said dying
declaration, there was no question of
mentioning about consciousness of Archana in
between 12.20 to 12.45 p.m. Fourthly, the
time gap between recording of two dying
declarations at Exhibits 31 and 33
creates serious doubt in the mind about the
version of the prosecution witnesses in
respect of recording of such dying
declaration. Fifthly, keeping in view the
physical and mental condition of Archana,
whether she was conscious and oriented while
making toe impression, if at all it is given
by her and there is no attestation to the
said toe impression, which is obtained on the
said dying declaration. The alleged agreement
and acceptance of the amount of Rs.2 lacs by
the PW-7 Janabai, and also the said agreement
is signed by the relatives, also creates
suspicion about genuineness of the
323.2013 Cri.Appeal.odt
prosecution case. On the whole, the
prosecution case does not inspire confidence
so as to maintain conviction for the offence
punishable under Section 302 of the IPC. The
evidence brought on record by the prosecution
is not cogent and does not inspire
confidence. The prosecution has not proved
the case beyond reasonable doubt. The three
dying declarations and also two dying
declarations alleged to have been given by
Archana cannot be safely relied upon in view
of the discussion in the foregoing
paragraphs. It has also come on record that
the appellant tried to extinguish the fire,
and in the said process he suffered burnt to
his hand and mouth, there appears to be
serious attempt on his part to extinguish the
fire.
27. We find considerable force in the
argument of the learned counsel appearing for
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the appellant that there was necessity of
strict scrutiny and closest circumspection by
trial Court before acting upon the dying
declarations and the Court must be satisfied
about the fit state of mind of the deceased
making declaration before relying on the same
as held by the Supreme Court in the case of
K.Ramachandra Reddy [cited supra].
28. The Supreme Court in the case of
State of Punjab Vs. Parveen Kumar2, while
appreciating the evidence in the form dying
declaration held that, while appreciating the
credibility of the evidence produced before
the Court, the Court must view evidence as a
whole and come to a conclusion as to its
genuineness and truthfulness. The mere fact
that two different versions are given but one
name is common in both of them cannot be a
ground for convicting the named person. The
court must be satisfied that the dying
2 AIR 2005 SC 1277
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declaration is truthful. If there are two
dying declarations giving two different
versions, a serious doubt is created about
the truthfulness of the dying declaration.
It may be that if there was any other
reliable evidence on record, this Court could
have considered such corroborative evidence
to test the truthfulness of the dying
declarations. The two dying declarations,
however, 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. It is well
settled that one piece of unreliable evidence
cannot be used to corroborate another piece
of unreliable evidence. The High Court while
considering the evidence on record has
rightly applied the principles laid down by
this Court in Thurukanni Pompiah and another
V. State of Mysore, AIR 1965 SC 939, and
Khusal Rao V. State of Bombay, 1958 SCR 552.
323.2013 Cri.Appeal.odt
In the case of Khushal Rao Vs. State of
Bombay3 held that 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.
29. In the light of discussion in the
foregoing paragraphs, we are of the
considered view that, the benefit of doubt
deserves to be given in favour of the
appellant-accused. Hence, we pass the
following order:
ORDER
i] The Criminal Appeal is allowed.
ii] The impugned judgment and order
dated 31st July, 2013, passed by the
Additional Sessions Judge, Udgir in
Sessions Case No.16 of 2012,
3 AIR 1958 SC 22 [1]
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convicting and sentencing the
accused-Satish Prabhurao Deone, for
the offence punishable under Section
302 of the Indian Penal Code, is
quashed and set aside.
iii] The appellant-Satish Prabhurao Deone
is acquitted of the offence
punishable under Section 302 of the
Indian Penal Code. Fine amount, if
deposited as per impugned judgment
and order, be refunded to the
appellant.
iv] The appellant-Satish Prabhurao Deone
is in jail, he be set at liberty
forthwith, if not required in any
other case.
v] The appellant-Satish Prabhurao Deone
shall furnish the personal bond of
Rs.15,000/- and surety of like
amount under Section 437-A of the
Criminal Procedure Code before the
concerned trial Court at Udgir.
[S.M.GAVHANE] [S.S.SHINDE]
JUDGE JUDGE
DDC
