Sanjay S/O. Dadarao Babar vs The State Of Maharashtra Thr. The ...
2017 Latest Caselaw 9282 Bom

                                                      1                                      jg.apeal.91.17.odt



                 THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR.

                            CRIMINAL APPEAL NO. 91 OF 2017

Sanjay S/o Dadarao Babar 
Aged 42 years, Occ. labour, 
R/o. Takli Talao, Tq. Khamgaon, 
District Buldhana.                                                                              ... Appellant

             VERSUS

The State of Maharashtra, 
Through the Police Station Officer, 
Police Station, Pimpalgaon Raja, Tq.
Pimpalgaon Raja, District Buldhana.                                                         ... Respondent
-------------------------------------------------------------------------------------------------
Shri N. A. Badar,  Advocate for the appellant
Mrs. M. H. Deshmukh, Additional Public Prosecutor for the respondent 
-----------------------------------------------------------------------------------------------------------------------

                                                  CORAM :  R. K. DESHPANDE AND
                                                                 M. G. GIRATKAR, JJ.

Date of reserving the judgment : 22/11/2017.

Date of pronouncing the judgment : 05/12/2017

Judgment (Per : M.G. Giratkar, J)

The appellant was charge-sheeted for committing murder

of his wife before the Additional Sessions Judge, Khamgaon, District

Buldana. The appellant is convicted for the offence punishable under

Section 302 of the Indian Penal Code vide judgment dated 5-11-2016 by

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the Additional Sessions Judge, Khamgaon. The appellant is sentenced

to suffer rigorous imprisonment for life and to pay fine of Rs. 5,000/- in

default to suffer simple imprisonment for 15 days. The appellant has

challenged the judgment of conviction in the present appeal.

2. The case of the prosecution against the appellant in short is

as under.

(i) On 2-10-2014, Police Head Constable Chaudhary (P.W. 1), Police

Station, Pimpalgaon Raja received telephonic message that at New

Village Takli Talao, one Laxmi Sanjay Babar was injured due to burn.

He along with staff rushed there. He found one lady lying in burn/

injured condition. With the help of villagers, they brought injured up to

Village Bhalegaon in auto-rickshaw. They had already called an

ambulance. The said ambulance met on the road near Bhalegaon. They

shifted injured in the ambulance and taken her to Civil Hospital,

Khamgaon. During the journey from Bhalegaon to Khamgaon, P.W. 1

enquired injured/burn patient about the incident. She told that "her

husband Sanjay Babar demanded money from her for gambling. But

she refused. The accused got annoyed. He took lamp (chimney) of

kerosene. He poured kerosene on her person and thereafter set her on

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fire by a match stick." After admitting injured in the hospital, he

requested Executive Magistrate to record her dying declaration.

Executive Magistrate recorded dying declaration. He received dying

declaration, went to Police Station, Pimpalgaon Raja and registered

crime for the offence punishable under Section 307 of the Indian Penal

Code against the accused.

(ii) A.P.I. Vanjari (P.W. 7) investigated the crime. He arrested

accused, visited the spot of incident, prepared spot panchanama,

Exhibit 19, recorded statements of witnesses those who extinguished

the fire of victim. Thereafter he went to Civil Hospital, Khamgaon

on 8-10-2014 and recorded statement of victim/dying declaration

(Exhibit 65). Injured Laxmi died on 10-11-2014. Postmortem was

conducted by Dr. Morey (P.W. 8). Offence punishable under Section

302 of the Indian Penal Code was added and after complete

investigation, filed the charge-sheet against the appellant before the

Judicial Magistrate First Class. The same was committed for trial to the

Court of Sessions, Khamgaon.

(iii) Charge was framed by the trial Court at Exhibit 7. The appellant

pleaded not guilty and claimed to be tried. The prosecution has

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examined following 8 witnesses.

(1) P.W. 1 Shri Gajanan Rambhau Chaudhary (Exhibit 15) (2) P.W. 2 Sopan Pandurang Sawant (Exhibit 18) (3) P.W. 3 Shobhabai Pandurang Sawant (Exhibit 20) (4) P.W. 4 Shri Rajendra Sukhdeo Ingle (Exhibit 23) (5) P.W. 5 Dr. Nilesh Ramesh Tapare (Exhibit 26) (6) P.W. 6 Dr. Riddhi Hatiwala (Exhibit 30) (7) P.W. 7 Shri Panjab Sukdeorao Vanjari (Exhibit 36) and (8) P.W. 8 Dr. Suhas Kashinath Morey (Exhibit 51)

(iv) Learned trial Court come to the conclusion that dying

declarations stated by deceased are consistent and, therefore, on the

basis of dying declarations, convicted the appellant for the offence

punishable under Section 302 of the Indian Penal Code. Being

aggrieved by the judgment of conviction, present appeal is filed.

3. Heard learned counsel Shri Badar for the appellant. He has

submitted that the dying declarations stated by P.W. 1, recorded by

Executive Magistrate (P.W. 4) and dying declaration recorded by A.P.I.

Vanjari are contradictory. All dying declarations are not reliable. Not a

single independent witness examined by the prosecution. Defence

witness no. 2 Subhash Chavre, real son of deceased has stated that his

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mother died due to burn injuries while cooking. She was engulfed in

fire. At the time of incident, accused was out of village in search of

employment. Appellant himself examined and stated that he was out of

village at the time of incident.

4. Learned counsel for the appellant placed reliance on the

judgment of this Court in the case of Munnabee w/o Shoukat Tadvi Vs.

State of Maharashtra reported in [2016(5) Mh.L.J.(Cri.) 637].

Learned counsel for the appellant has submitted that dying declarations

stated by deceased are not reliable. Trial Court wrongly relied on the

dying declarations stated by deceased and wrongly convicted the

appellant, at last, prayed to allow the appeal and the appellant be

acquitted.

5. Learned Additional Public Prosecutor Mrs. Deshmukh for

the State/respondent has submitted that though there are multiple

dying declarations, those are consistent and voluntary. Dying

declarations stated by deceased are reliable and, therefore, appellant is

rightly convicted by the trial Court. Hence, appeal is liable to be

dismissed. In support of her submission, she has pointed out decisions

of Hon'ble Supreme Court in the cases of Raju Devade Vs. State of

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Maharashtra reported in AIR 2016 SC 3209 and Shudhakar Vs. State

of Madhya Pradesh reported in (2012) 7 SCC 569.

6. While convicting the accused only on the basis of dying

declaration, Court has to keep in mind the following cardinal principles

laid down by the Hon'ble Supreme Court in the case of Khushal Rao vs.

State of Bombay reported in AIR 1958 SC 22 :

"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, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case."

7. Accused can be convicted only on the basis of dying

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declaration provided that it should be truthful and inspire confidence

of the Court. If dying declaration creates doubt, then further

corroboration is necessary.

8. In the present case, not a single independent witness is

examined by the prosecution corroborating the dying declaration stated

by deceased Laxmibai. There is no dispute that Laxmibai is second wife

of appellant. As per the evidence of P.W. 1 PHC Chaudhary, he received

information that one lady was burnt at New Village Takli Talao.

Therefore, he along with staff went to the said village. He found Laxmi

in injured/burn condition. He taken the injured/deceased to the Civil

Hospital, Khamgaon.

9. P.W. 1 has stated that some villagers were with them while

taking injured to the Civil Hospital, Khamgaon. He has stated that

during the journey, she stated to him that her husband/ appellant

demanded money from her for gambling. She refused. The appellant

got annoyed. He took lamp (chimney) of kerosene. Kerosene was

poured on her person by the appellant and thereafter set her on fire by a

match stick.

8 jg.apeal.91.17.odt

10. Evidence in respect of oral dying declaration is altogether

different than which was recorded by P.W. 4 Executive Magistrate

Shri Rajendra Ingle (Exhibit 23). He has stated that on the request

of police, he went to Civil Hospital, Khamgaon. He requested Medical

Officer to certify about the fitness of patient. After receipt of certificate

about the fitness, he started recording dying declaration. Injured stated

before him that "on 2-10-2014 at about 10.00 to 11.00 a.m. she was at

her residential house. At that time, her husband Sanjay Dadarao Babar

accompanied other persons. They were playing cards below a tree. He

was asking her for money for that purpose. She was told him that she

was not having money, hence unable to give him. At that time her

husband got annoyed and picked up a chidi (kerosene lamp) and

poured kerosene from it on her person. Thereafter he took fire from

the ovan (chul) and ablaze her. Her son, her daughter Asha and son

Golya were in the house. They got frightened and shouted and thereby

her neighbours came there and poured water on her person and

extinguished the fire. Her husband asking money from her. He set her

on fire. She has no suspicion against anybody." This dying declaration

is at Exhibit 24.

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11. P.W. 7 API Shri Vanjari went to Civil Hospital, Khamgaon

on 8-10-2014 and recorded her statement/dying declaration. She has

stated before him that "on 2-10-2014 at about 11.00 a.m. her husband

Sanjay Babar was playing gambling. He came to her and demanded

money. She told that she was not having money. Her husband took out

chidi (kerosene lamp) and poured kerosene on her person and set her

on fire. That time, her children were present. Villagers extinguished

fire."

12. Case of prosecution is solely based on two written dying

declarations recorded by P.W. 4 Executive Magistrate and P.W. 7 API

Vanjari and oral dying declaration stated by P.W. 1. In the first oral

dying declaration stated by P.W. 1, she has stated that her husband

poured kerosene and set her on fire by match stick. She has not stated

in first oral dying declaration that appellant was playing gambling with

others. She has not stated in first dying declaration that villagers

extinguished the fire. As per the evidence of P.W. 1 he taken

injured/deceased to Civil Hospital, Khamgaon. Villagers were also

accompanied them. They travelled firstly by auto-rickshaw and

thereafter by ambulance. It is pertinent to note that not a single

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independent person, who accompanied them, examined by the

prosecution, to corroborate the version of P.W. 1.

13. Evidence of P.W. 4 Executive Magistrate Shri Ingle shows

that he went to hospital on 2-10-2014 and recorded dying declaration,

Exhibit 24 as stated by deceased. In this dying declaration, deceased

has stated that her both sons and daughter were present. In first dying

declaration, she has not stated about the presence of her children.

Oral dying declarations stated by P.W. 1, written dying declaration,

Exhibit 24 recorded by P.W. 4 and Exhibit 65 recorded by P.W. 7 are not

consistent. In the first oral dying declaration, she has stated that

appellant poured kerosene on her and set her on fire by match stick.

Whereas in Exhibit 24, she has stated that her husband poured kerosene

on her person, thereafter taken fire from the ovan (chul) and set her on

fire. In the third dying declaration, she has not stated by which means

she was set on fire. In Exhibit 65, she has stated that her husband

demanded money, when she refused, her husband poured kerosene by

taking from the lamp and set her on fire. When there are multiple dying

declarations, then it was the duty of the prosecution to examine

independent witness. As per evidence on record villagers extinguished

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fire. They also accompanied deceased to hospital.

14. P.W. 2 is the panch witness of spot of incident. P.W. 3

Shobhabai Sawant has stated that she came to know about the incident.

She heard noise of fire-fire, therefore, she rushed to the crowd.

Laxmibai was found there in burn condition but she has not stated

anything as to how deceased sustained burn injuries. It was natural for

her to enquire from the deceased. Being a villager, she could have

enquired from others also, but this witness not stated anything that

deceased was burned by her husband.

15. As per the evidence of P.W. 7, Investigating Officer

Shri Vanjari, it is clear that during the investigation, he has recorded

the statements of villagers who extinguished fire of victim. Therefore, it

was for the prosecution to examine any of the witness who extinguished

the fire of victim but not a single person was examined by the

prosecution. It appears that prosecution has suppressed the material

evidence.

16. Deceased has sustained 15% burn. It has come in the

evidence of Medical Officer that she could have been saved. As per the

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dying declaration stated by P.W. 4 Executive Magistrate, her children

were present. D.W. 2 is her real son whereas appellant is his step

father. D.W. 2 Subhash has stated in his evidence that at the time of

incident, his mother was cooking food. She was engulfed in fire and,

therefore, sustained injuries. He has further stated that at the time of

incident, accused was out of village in search of employment. It was

also the defence of appellant that he was out of village at the time of

incident.

17. P.W. 3 is the neighbour of deceased. She has not stated

about the presence of appellant in the village. Not a single independent

witness is examined by the prosecution to corroborate any of the dying

declarations. In the case of Munnabee w/o Shoukat Tadvi Vs. State of

Maharashtra (cited supra), Division Bench of this Court has held as

under.

"Conviction of appellant-accused who was second wife for committing murder of first wife of her husband by setting her on fire. Appeal against conviction. Conviction based on multiple dying declarations of victim. Evidentiary value - in case of multiple dying declarations they must be consistent to each other. Said consistency should be in respect of contents,

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such as name, number of accused, prelude to incident and incident itself. Prelude to incident as narrated in dying declaration recorded by Police Head Constable is absent in dying declaration recorded by P.W. 1. There is variance in respect of incident. Merely because an act is attributed to accused herein in dying declarations, that does not mean that said dying declarations are liable to be accepted as reliable piece of evidence. No endorsement made by Special Executive Magistrate that contents of dying declarations were read over to declarant who admitted as true and correct. Conviction and sentence set aside. Appeal allowed."

18. In the present case also, there is also variance in respect of

incident merely because act is attributed to accused that does not mean

that dying declarations stated by deceased Laxmibai are liable to be

accepted and reliable piece of evidence.

19. Learned Additional Public Prosecutor Mrs. Deshmukh has

pointed out decision in Shudhakar Vs. State of Madhya Pradesh

(cited supra). In the cited decision, it was held by the Hon'ble Supreme

Court that :

"................. However, second and third dying declarations, implicating appellant husband, were authentic, voluntary

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and duly corroborated by other prosecution witnesses including medical evidence. In the case in hand before us, not a single independent witness is examined by the prosecution. Therefore, cited decision is not applicable in the present case."

20. Learned Additional Public Prosecutor Mrs. Deshmukh

further relied on the decision in the case of Raju Devade Vs. State of

Maharashtra (cited supra). In the cited decision in para 23, it is

observed by the Hon'ble Supreme Court that :

"The Court must be satisfied that the dying declaration is truthful. If there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declarations. 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."

21. In the present case, in first dying declaration, deceased not

stated presence of her children at the time of incident. She has stated

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that she was burnt by match stick whereas in the second dying

declaration, Exhibit 24, she has stated about presence of children. She

has stated that she was burnt by her husband after pouring kerosene

and taken fire from ovan (chul) and set her on fire. In third dying

declaration, Exhibit 65, she has not stated by what means she was

burnt.

22. As per evidence villagers extinguished the fire but not a

single witness is examined by the prosecution to corroborate her

version. P.W. 3 is the neighbour of deceased. She has not stated

anything as to how deceased sustained burn injuries. While convicting

the accused only on the basis of dying declaration, the Court has to keep

in mind that dead person cannot be called for cross-examination.

Therefore, utmost care is required while convicting the accused only on

the basis of dying declarations. In the case in hand, there are three

dying declarations, one oral dying declaration stated by P.W. 1, second

dying declaration recorded by P.W. 4 and third by P.W.7. All the three

dying declarations are not consistent. Learned trial Court not taken into

consideration about the inconsistency between the dying declarations

stated by deceased and wrongly convicted the appellant. Hence, we are

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inclined to allow the appeal and pass the following order.

                                       ORDER


         (i)     The appeal is allowed.  

(ii) The impugned judgment is hereby quashed and set aside.

(iii) Appellant is acquitted of the offence punishable under

Section 302 of the Indian Penal Code. He be set at liberty if not

required in any other crime/case.

(iv) R & P be sent back to the trial Court.

                        JUDGE                                        JUDGE


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