Bombay High Court
Mariba Piraji Chapewad vs The State Of Maharashtra on 18 December, 2017
Bench: T.V. Nalawade
1 APEAL603.2002
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 603 OF 2002
Mariba Piraji Chapewad,
Age : 35 years, Occu. Labour,
R/o. Kalyannagar, Naned ... Appellant
VERSUS
The State of Maharashtra
Through Police Station, Bhagyanagar,
Nanded, Tq. & Dist. Nanded. ... Respondent
..........
Mr Satyajit Dixit, Advocate (appointed) for the appellant
Mr S. J. Salgare, APP for respondent/State
.............
CORAM : T. V. NALAWADE &
A. M. DHAVALE, JJ.
RESERVED ON : 14.11.2017.
PRONOUNCED ON : 18.12.2017.
JUDGMENT (PER A. M. DHAVALE, J.) :
1. In Sessions Case No. 84/2001, the appellant was convicted
u/s 302 IPC for pouring kerosene on person of victim Ganesh and
setting him on fire and thereby committed his murder and was
sentenced to imprisonment of life and to pay fine of Rs. 10,000/- in
default RI for six months. The accused was acquitted u/s 3(2)(v) of
the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities)
Act, 1989. The appellant being aggrieved by the conviction has
preferred this appeal.
2 APEAL603.2002
2. The facts relevant for deciding this appeal may be stated as
follows.
. On 22.01.2001, in the evening, Police of Bhagya Nagar
Police Station, Nanded received information of M.C. Case, hence,
PW8 ASI Shripad Jankar visited Civil Hospital, Nanded. After
obtaining certificate from Medical Officer about consciousness and
mental fitness of the victim, he recorded dying declaration of Ganesh
Suryawanshi (the deceased), who had sustained 65%burns. He had
disclosed to PW8 ASI Jankar that, as he was a labourer, on
22.01.2011 at 05:30 p.m. he consumed 100 gm. of liquor in Liquor
Shop of Shetti at Kalyan Nagar, Nanded. When he came out, the
accused Mariba came there and told him to supply liquor to him.
Deceased Ganesh further disclosed that, he told the accused that he
had no money then the accused suddenly brought some kerosene in a
glass and poured it on his person and set him on fire by lighting a
match stick. His banyan caught fire and he sustained burns on chest,
abdomen, face, back and on thighs. This dying declaration was read
over to deceased Ganesh and he admitted it to be correct and then
signed it. This dying declaration was taken to the Police Station and
at 09:35 p.m. crime was registered at C.R. No. 16/2001 u/s 307 IPC.
The same was investigated into by PW11 PSI Prashant Deshpande.
3 APEAL603.2002
On the same night, PW4 Khaja Farukh Hussain, JMFC, Nanded
received a request letter from PW8 ASI Jankar for recording dying
declaration. He received the letter at 08:00 p.m. and recorded dying
declaration at 08:10 to 08:30 p.m. He also obtained the opinion of
Medical Officer about consciousness and mental fitness of the patient.
The dying declaration by JMFC is substantially similar and slightly
different. It shows that, on the same day at 05:30 p.m. the accused
Mariba abruptly came in front of him outside the shop of Shetti,
poured kerosene on his person from a glass and set him on fire by
lighting a match stick and thereby he sustained 65% burns on face,
both hands, chest, abdomen and legs. It was also read over to burn
patient and his signature was obtained. The investigation also
revealed that, PW7 Suresh Nikalje was at the relevant time in the
Liquor Shop of Shetty. On hearing shouts of Ganesh (deceased), he
came out and saw that Ganesh had sustained burn injuries. The
deceased gave oral dying declaration that the accused demanded
Rs.10/- for purchasing liquor and as he could not advance the same,
kerosene was poured on his person and he was set on fire. He saw
accused leaving the spot in hurry. Thereafter, he gave intimation to
brother Ankush (PW1) and mother Haribai (PW5). PW1 had been to
the spot and the deceased had given dying declaration before him
while he gave dying declaration to his mother Haribai in the hospital.
4 APEAL603.2002
The clothes of the deceased were seized and forwarded to the office
of CA. The reports received from the CA Office disclose kerosene
residues on T-shirt, nicker and full pant of the deceased. On
26.01.2001, the deceased succumbed to the burn injuries. His PM
was conducted and the cause of death was 65% superficial to deep
burns. The statements of material witnesses came to be recorded.
The spot panchanama and inquest panchanama were drawn. After
completion of investigation, the charge-sheet was submitted in the
court.
3. In due course, the case was committed to the court of
Sessions, Nanded. The ld. Addl. Sessions Judge, Nanded framed
charge. The investigation also revealed that the accused belongs to
Wadar community whereas the deceased belongs to Mang
community, hence the charge u/s 302 of IPC and 3(2)(v) of SC & ST
Act were framed. The accused pleaded not guilty. The prosecution
examined 12 witnesses whereas the defence examined one witness.
It is the defence of the accused that, the accused had a quarrel with
his brother and, therefore, he himself committed suicide by setting
himself on fire. The ld. Addl Sessions Judge, Nanded was pleased to
accept the prosecution evidence to hold the accused guilty u/s 302
IPC. Hence, the accused has preferred this appeal.
5 APEAL603.2002
4. Since the ld. advocate for the accused did not appear,
advocate Shri. Satyajit Dixit was appointed at State expenses to
represent the accused. He has taken us through the evidence on
record and argued that the prosecution evidence regarding the oral
dying declaration is not trustworthy and reliable. There is evidence
of defence witness that deceased committed suicide by pouring
kerosene on his own person and setting himself on fire. There are
contradictions in two dying declarations Exh. 34 recorded by PW8
ASI Jankar and Exh. 23 recorded by PW4 Khaja Hussain, Judicial
Magistrate (F.C.). He argued that, nobody would set anybody on fire
only for non-payment of Rs. 10/- for consumption of liquor. There is
no proper explanation from where the accused brought kerosene.
There was quarrel between the deceased and his brother and
therefore the evidence of brother and mother is not reliable. The
main witness Suresh Nikalje (PW7) has turned hostile. Hence, the
appeal be allowed and accused be acquitted.
5. Per contra, Mr S. J. Salgare, learned APP for the State
strongly supported the judgment of the trial Court. He argued that
the ld. Judicial Magistrate (F.C.) has followed due procedure. He has
obtained opinion of the Medical Officer PW12 Dr. Malge about
consciousness and mental condition of deceased Ganesh and
6 APEAL603.2002
thereafter recorded the dying declaration. He has deposed the
substance of the dying declaration. It was read over to the deceased
and thereafter his signature was obtained. There is nothing
suspicious to raise doubt about the dying declaration Exh. 23
recorded by Judicial Magistrate. Similarly, the earlier dying
declaration recorded by PW8 ASI Jankar Exh. 34 is also consistent.
The minor variations will not make the same suspicious and
unreliable. It is supported by three oral dying declarations before
Ankush PW1 and PW5 Haribai. The hostile witness PW7 has
admitted that the deceased gave oral dying declaration to his brother
PW1-Ankush. The deceased had sustained only 65% burns and died
after four days and therefore no doubt can be raised about his
physical and mental capacity to give declaration.
6. On careful consideration of the arguments, the points for
our consideration with findings thereon are as follows ;
Sr.No. Point Finding
1 Whether the accused poured Not proved.
kerosene on the person of the
deceased Ganesh and set him on
fire and thereby committed offence
of murder?
2 Whether any interference is Yes.
warranted in the conviction and
sentence?
7 APEAL603.2002
3 What order? Appeal is allowed.
Accused is acquitted
of the charge.
REASONS
7. As to point No. 1 : In this case as per oral evidence of the
witnesses PW1 Ankush (brother), PW5 Haribai (mother), PW4 Khaja
Hussain, JMFC, PW8 Jankar (ASI), deceased Ganesh had sustained
burns on his face, chest, back, both arms and waist. He was brought
in the Civil Hospital, Nanded. PW12 Dr. Malge had examined and
treated him. He had also supported the evidence about burn injuries
sustained by Ganesh. On 26.01.2001, the deceased succumbed to the
burn injuries. Thereafter, inquest panchanama Exh. 17 was drawn in
presence of PW2 Narsingrao and post-mortem was conducted by
PW10 Sudhir Kulkarni, Medical Officer. The PM report shows that,
deceased Ganesh died due to shock due to burns superficial deep to
deep to extent of 65%. His entire head, neck, face, right and upper
limps, anterior and posterior parts were totally burnt. There was
only 2% burn on left lower limb. In the light of the above
unchallenged evidence, it is certain that, deceased Ganesh
Suryawanshi, aged 20 years, sustained burns on 22.01.2001 at about
05:30 p.m. and he was taken to the Civil Hospital, Nanded but
succumbed to the burn injuries on 26.01.2001. The moot question is
who has caused the burn injuries to deceased Ganesh. According to
8 APEAL603.2002
the prosecution, the accused poured kerosene on his person and set
him on fire whereas according to the accused deceased Ganesh
himself poured kerosene and set himself on fire. The defence has
examined DW1 Uttam, who has posed himself as eye-witness. Thus,
the defence story runs parallel to the story of the prosecution.
8. Since the case is based on dying declaration, the ld. Addl.
Sessions Judge has quoted the principles regarding appreciation of
evidence based on dying declaration. It is necessary to quote some
important decisions on this point. In Khushal Rao v. State of
Bombay AIR 1958 SC 22, the principles on appreciation of evidence
of dying declaration were crystallized as follows.
(1) that it cannot be laid down as an absolute rule of law that a
dying declaration cannot form the sole basis of conviction
unless it is corroborated;
(2) that each case must be determined on its own facts keeping in
view the circumstances in which the dying declaration was
made;
(3) that it cannot be laid down as a general proposition that a
dying declaration is a weaker kind of evidence than other
pieces of evidence;
(4) that a dying declaration stands on the same footing as
another piece of evidence and has to be judged in the light of
surrounding circumstances and with reference to the
principles governing the weighing of evidence;
(5) that a dying declaration which has been recorded by a
competent magistrate in the proper manner, that is to say, in
the form of questions -and answers, and, as far as
9 APEAL603.2002
practicable, in the words of the maker of the declaration,
stands on a much higher footing than a dying declaration
which depends upon oral testimony which may suffer from all
the infirmities of human, memory and human character, and
(6) that in order to test the reliability of a dying declaration, the
Court has to keep in view the. circumstances like the
opportunity of the dying man for observation, for example,
whether there was sufficient light if the crime was committed
at night; whether the capacity of the man to remember the
facts stated had not been impaired at the time he was making
the statement, by circumstances beyond his control; that the
statement has been consistent throughout if he had several
opportunities of making a dying declaration apart from the
official record of it-; and that the statement had been made
at the earliest opportunity and was not the result of tutoring
by interested parties.
9. In Tarachand Sutar v State of Maharashtra AIR 1962 SC
130. The wife of the accused had died as a result of burns caused by
fire set to her clothes by the accused who had sprinkled kerosene
before setting her on fire. It is recorded that, when there is dying
declaration of such burn patient, cogent reasons are necessary to be
given to raise doubts about the correctness about such dying
declaration.
21. It is always a difficult question to speculate
why the deceased accused a certain person of committing
the crime, or why a witness deposes against a person
with whom he has no ostensible cause of its enmity or
why the police, in the discharge of its public duty should
influence persons to make inaccurate statements, when
Courts come to the conclusion that the accusation or the
evidence does not appear to be true and that there are
reasons to suppose that the. police had influenced the
testimony of witnesses. Anyway, the same difficulty
occurs in the present case. But it is clear that the
10 APEAL603.2002
relations between the wife and the husband were
strained to such an extent that, according to the
prosecution, the accused not only starved her, but also
set fire to her clothes with the intention to cause her
death. Such a conduct of the husband cannot be on
account of ordinary domestic unpleasantness, but must
be the result of a very acute feeling of desperation and a
desire not to live any more with his wife. If such were the
relations which one is inclined to infer from what the
prosecution wants the Court to believe, it should not be
difficult to imagine that the wife's motives in charging
the husband falsely may be equally strong. She too must
have been fed up with the misery of her life and might
have committed suicide and put an end to her life, but
when, as often happens, she was questioned, she accused
her husband of setting fire to her clothes, not with a
view to save herself from a conviction for attempting to
commit suicide, but either on account of her feeling that
her husband was responsible for all her troubles and
that her disparate action was also due to the same cause
or out of malice. Any way, a dying declaration is not to
be believed merely because no possible reason can be
given for accusing the accused falsely. It, can only be
believed if there are no grounds for doubting it at all.
10. We agree with the submissions of ld. APP Shri. Salgare that
the dying declaration recorded by Judicial Officer after following the
due procedure stands on a very high pedestal and it should not be
normally disbelieved and it can be the sole basis for conviction. In
this regard, we quote observations in Chirra Shivraj v. State of A.P.
2011 Cr.L.J. 971 SC.
12. If dying declaration is trustworthy and if it can be
shown that the person making the statement was not influenced
by any exterior factor and made the statement which was duly
recorded, it can be made basis for conviction. In the instant case,
immediately after the incident, the deceased was taken to the
Government Hospital, Nizamabad and upon getting information
11 APEAL603.2002
with regard to the offence, the ASI had rushed to the Government
Hospital, Nizamabad and the deceased had made her statement
before him and thereafter she had made her dying declaration
before a judicial officer around 8 p.m. The said statement was
scrupulously recorded by the Judicial Officer who had found the
deceased to be conscious and fit to make statement. Very recently,
this 9 Court had examined whether a dying declaration can be the
sole basis for conviction. After examining several judgments on the
subject, this Court had observed in Puran Chand v. State of
Haryana, 2010 (6) SCC 566, as under:
"15. The courts below have to be extremely careful when they
deal with a dying declaration as the maker thereof is not
available for the cross- examination which poses a great
difficulty to the accused person. A mechanical approach in
relying upon a dying declaration just because it is there is
extremely dangerous. The court has to examine a dying
declaration scrupulously with a microscopic eye to find out
whether the dying declaration is voluntary, truthful, made in
a conscious state of mind and without being influenced by the
relatives present or by the investigating agency who may be
interested in the success of investigation or which may be
negligent while recording the dying declaration.........
18. The law is now well settled that a dying declaration
which has been found to be voluntary and truthful and which
is free from any doubt can be the sole basis for convicting the
accused. ......... ................"
11. In Ghanshyam Das Versus State of Assam 2005(13) SCC
387, the oral dying declaration made by deceased just before he
became unconscious was believed as there was no reason for false
implication. In Sukanti Mohrana V State of Orissa 2009(9) SCC
163, it is laid down in a case of bride burning, when the deceased
had given oral dying declaration to her parents and other relatives
that her husband had poured kerosene on her and set her on fire and
12 APEAL603.2002
he closed the door of the room leaving her to burn by the fire, the
absence of doctor's certificate and endorsement as to mental fitness
of the deceased or absence of thumb impression of the deceased
cannot be fatal to the prosecution case. The endorsement of doctor
regarding mental fitness of the deceased is a rule of prudence and not
the ultimate test as to whether or not the same was truthful or
voluntary, particularly when there was contemporaneous evidence
that the doctor had recorded that the patient was oriented and
mentally clear. When the deceased had sustained 90-95% burns and
her thumb was bandaged it was not possible to take her signature or
thumb impression, that cannot be the ground to reject the dying
declaration recorded by the doctor and supported by oral dying
declaration. The following guidelines from Vikas Versus State of
Maharashtra (2008) 2 SCC 516 were quoted with approval.
45. The Court, referring to earlier case law, summed up principles
governing dying declaration as under:
(i) There is neither rule of law nor of prudence that dying
declaration cannot be acted upon without corroboration.
(ii) If the Court is satisfied that the dying declaration is true
and voluntary it can base conviction on it, without
corroboration.
(iii) This Court has to scrutinise the dying declaration carefully
and must ensure that the declaration is not the result of
tutoring, prompting or imagination. The deceased had
opportunity to observe and identify the assailants and was
in a fit state to make the declaration.
13 APEAL603.2002
(iv) Where dying declaration is suspicious it should not be
acted upon without corroborative evidence.
(v) Where the deceased was unconscious and could never make
any dying declaration the evidence with regard to it is to
be rejected.
(vi) A dying declaration which suffers from infirmity cannot
form the basis of conviction.
(vii) Merely because a dying declaration does not contain the
details as to the occurrence, it is not to be rejected.
(viii)Equally, merely because it is a brief statement, it is not to
be discarded. On the contrary, the shortness of the
statement itself guarantees truth.
(ix) Normally the court in Order to satisfy whether deceased
was in a fit mental condition to make the dying
declaration look up to the medical opinion. But where the
eye witness has said that the deceased was in a fit and
conscious state to make this dying declaration, the medical
opinion cannot prevail.
(x) Where the prosecution version differs from the version as
given in the dying declaration, the said declaration cannot
be acted upon.
12. Bhagwan Tukaram Dangev v. State of Maharashtra
2014 Cri. L. J. 1875 SC was a case involving multiple dying
declaration. One recorded by Head Constable and other by Judicial
Magistrate (F.C.). The victim was suffering from more than 80% and
both the times the doctor found her fit and mentally stable. The
dying declarations were consistent. It was held that those cannot be
discarded despite minor variations here and there. In Rangaiah v.
State of Karnataka AIR 2009 SC 1411, the deceased had taken
14 APEAL603.2002
names of two persons who had stabbed him. Only one of them was
prosecuted. No explanation was offered that the dying declaration
was not recorded through the Judicial Officer. The doctor who had
certified the fitness of the patient was not examined. The apex Court
set aside the order of the High Court to restore the order of acquittal.
Following observations from Mohan Lal v State of Haryana
2007(9) SCC 151 were quoted with approval.
(i) There is neither rule of law nor of prudence that dying
declaration cannot be acted upon without corroboration. [See
Munnu Raja & Anr. v. The State of Madhya Pradesh (1976)
2 SCR 764)]
(ii) If the Court is satisfied that the dying declaration is true
and voluntary it can base conviction on it, without
corroboration. [ See State of Uttar Pradesh v. Ram Sagar
Yadav & Ors. (AIR 1985 SC 416) and Ramavati Devi v. State
of Bihar (AIR 1983 SC 164)]
(iii) The Court has to scrutinize the dying declaration
carefully and must ensure that the declaration is not the
result of tutoring, prompting or imagination. The deceased
had an opportunity to observe and identify the assailants and
was in a fit state to make the declaration. [See K.
Ramachandra Reddy and Anr. v. The Public Prosecutor (AIR
1976 SC 1994)]
(iv) Where the dying declaration is suspicious, it should not
be acted upon without corroborative evidence. [See Rasheed
Beg v. State of Madhya Pradesh (1974 (4) SCC 264)]
(v) Where the deceased was unconscious and could never
make any dying declaration, the evidence with regard to it is
to be rejected. [See Kaka Singh v State of M.P. (AIR 1982 SC
1021)]
(vi) A dying declaration which suffers from infirmity cannot
form the basis of conviction. [See Ram Manorath and Ors. v.
15 APEAL603.2002
State of U.P. (1981 (2) SCC 654)
(vii) Merely because a dying declaration does contain the
details as to the occurrence, it is not to be rejected. [See State
of Maharashtra v. Krishnamurthi Laxmiati Naidu (AIR 1981
SC 617)]
(viii) Equally, merely because it is a brief statement, it is not
to be discarded. On the contrary, the shortness of the
statement itself guarantees truth. [See Surajdeo Oza and Ors.
v. State of Bihar (AIR 1979 SC 1505).
(ix) Normally the Court in order to satisfy whether the
deceased was in a fit mental condition to make the dying
declaration looks up to the medical opinion. But where the
eye-witness said that the deceased was in a fit and conscious
state to make the dying declaration, the medical opinion
cannot prevail. [See Nanhau Ram v. State of M.P. (AIR 1988
SC 912)].
(x) Where the prosecution version differs from the version as
given in the dying declaration, the said declaration cannot be
acted upon. [See State of U.P. v. Madan Mohan and Ors.
(AIR 1989 SC 1519)].
(xi) Where there is more than one statement in the nature of
dying declaration, one first in point of time must be
preferred. Of course, if the plurality of dying declarations
could be held to be trustworthy and reliable, it has to be
accepted. [See Mohanlal Gangaram Gehani v. State of
Maharashtra (AIR 1982 SC 839)]
13. In Chinnamma v State of Kerala AIR 2004 SC 2816,
there were two dying declaration one recorded by Head Constable
and other by Judicial magistrate. The contents in the dying
declarations were highly contradictory as to infliction of injury by the
appellant. The motives given in the dying declarations were entirely
different. There was possibility of the deceased being influenced by
16 APEAL603.2002
her parents. It was held that the conviction on such dying
declarations was unsustainable.
14. In Sudhakar v State of M.P. AIR 2012 SC 3265. There
were multiple contradictory dying declarations. The deceased-wife
had sustained 95% burns. The first dying declaration was recorded
without the doctor's certificate about fitness and in presence of the
accused husband and relations. The second and third dying
declarations were recorded after obtaining certificate of the doctor
about fitness. The same were supported by witnesses and medical
evidence. It was held that the deceased had reasons to give a false
declaration at the beginning. The second and third dying declarations
were held voluntary and were believed to convict the accused.
15. In State of Rajasthan v. Sheo Singh AIR 2003 SC 1783, it
was alleged that the accused had assaulted the deceased. There were
eye-witnesses to the incident. There was a strong enmity between
the parties. The first version of occurrence as disclosed by the eye
witnesses to the police was not brought on record. It was held that
there was a possibility that FIR was lodged after due deliberation
with the police as there was delay in lodging the FIR, and as eye-
witness did not state that the deceased's father had given dying
declaration, the order of acquittal was held proper.
17 APEAL603.2002
16. In Laxmi (Smt) Versus Om Prakash AIR (2001) 6 SCC
118, it is observed "Nemo moriturus praesumitur mentire - no one at
the point of death is presumed to lie. A man will not meet his Maker
with a lie in his mouth" __ is the philosophy in law underlying
admittance in evidence of dying declaration. It was observed that,
the dying declaration made to Police Office though to be generally
discouraged is very much admissible in evidence. As far as possible,
the Magistrate should be called for recording the dying declaration
unless the condition of the patient so precarious that the police
officer has no alternative but to himself record the dying declaration.
In that case, there were five dying declarations but the physical and
mental fitness to make a dying declaration was doubtful and there
were other infirmities. It is held that, when there are more than 1
dying declarations inconsistent with each other, that will not cure the
infirmity arising out of the doubts about mental and physical fitness
of the maker.
17. In Raju Devadev v. State of Maharashtra AIR 2016 SC
3209, it is held that, it is the duty of the court in a cases of multiple
dying declarations to consider each dying declaration independently
on its own merits and one cannot be rejected because of the contents
18 APEAL603.2002
of the other.
18. Though the dying declaration can be the sole basis for
conviction, it is well settled that such dying declaration should be
given by person having physical and mental fitness and it should be
voluntary, truthful and should inspire the confidence. Otherwise if
there are some infirmities or inconsistencies, the court should look
for corroboration.
19. In the present case, the prosecution solely relies on the
dying declaration of the deceased. Rest of the evidence is mostly
consistent with the defence story that the accused himself poured
kerosene on his person and set himself on fire. The evidence will
have to be carefully scrutinized with care and caution to find out
whether the dying declarations are fully truthful and reliable and
whether there is any reasonable doubt about the probability of the
defence story being true or not.
20. When a case is not based on eye-witness evidence, the
motive plays important role. It is a common knowledge that, no
person pours kerosene on somebody else and sets him on fire without
any reason or for some flimsy reason. Most of the above referred
cases are of dying declarations of brides Harassment, ill-treatment
19 APEAL603.2002
and setting a bride on fire are unfortunately historical and in
existence at large scale in India. The same is not the case with regard
to the setting on fire a stranger or a person little known to the
accused. As per presumption u/s 114, having regard to the human
conduct, it cannot be easily accepted that the accused would kill the
deceased by pouring kerosene on his person and setting him on fire
without any reason or for flimsy reason.
21. Nobody has seen the accused pouring kerosene on the
person of the deceased Ganesh and setting him on fire but it must be
stated that there is some consistency in the evidence of dying
declarations that the accused poured kerosene on the person of the
deceased Ganesh and set him on fire.
22. PW4 Khaja Farooq Hussain is a Judicial Magistrate. He
deposed that, the CJM had authorized him to record dying
declaration and he had earlier recorded 100 dying declarations. On
22.01.2001 he received message letter from Head Constable of
Bhagya Nagar Police Station (Exh.22) for recording dying declaration
of the deceased Ganesh Suryawanshi, who was admitted in Civil
Hospital, Nanded, with 65% injuries. He received the letter at 08:00
p.m. and he immediately went to the Hospital by 08:10 p.m. He got
20 APEAL603.2002
personally satisfied about the conscious state and mental fitness of
the patient. He isolated the patient and obtained opinion of Medical
Officer that the patient was fit. Thereafter he isolated the patient and
disclosed his identity, created confidence and made some formal
questions for verification. Then he recorded the dying declaration.
He deposed the substance of the dying declaration. As per his
evidence, the deceased told him that, on 22.01.2001 at 05:30 p.m. he
had gone to the shop of Shetty for consuming liquor. When he came
out, the accused Mariba met him and without any reason poured
kerosene on his person. Mariba had brought kerosene in a glass.
Then the accused set him on fire by lighting a match stick and he
sustained 65% burns. He read over the statement to the patient and
he certified that it was true and correct and thereafter he obtained
the signature of the patient. He had obtained the endorsement of
Medical Officer on the dying declaration both before and after the
statement. The dying declaration is at Exh. 23. He forwarded the
said dying declaration along with covering letter Exh. 24 on the next
date to the CJM, Nanded and produced his authority letter given by
CJM Exh. 25. In his cross-examination, following facts are brought
on record.
1. He had not seen the bed head ticket.
2. Before dying declaration, Ganesh was surrounded by his
relatives.
21 APEAL603.2002
3. The dying declaration does not disclose his evidence that
he had told the patient that he was a Magistrate and was
recording dying declaration.
4. He has also not recorded that he personally verified the
fitness of the patient.
5. He admitted that MO did not examine the patient Ganesh
in his presence but stated that the doctor was attending to
him.
6. He could not tell whether upper lip and front nose of the
patient were burnt. He admitted that fingers of the hands
of Ganesh were burnt but could not tell whether the skin
was peeled of. He did not record in the dying declaration
that it was read over to the patient.
23. Dying declaration Exh. 24 was recorded by PW8 ASI
Jankar. He has deposed that on receipt of information about
admission of burn patient as a Medico Legal Case, as per directions of
superiors he visited the hospital. He obtained the certificate of the
doctor about consciousness and capacity of the patient to make a
statement and obtained endorsement to that effect. He deposed that,
deceased Ganesh told him that on 22.01.2001 at 5:30 p.m. Mariba
demanded money from him for consumption of liquor. He was told
that Ganesh was not having money and he informed the accused
accordingly. Then the accused poured kerosene from a glass on his
person and set him on fire. He sustained burns to chest, stomach,
22 APEAL603.2002
chest and waist. The said statement was in the handwriting of PW8
Jankar and it was as per say of deceased Ganesh. It was not read
over to him and not asked whether it was correctly recorded or not
but it bears the signature of Ganesh.
24. In cross-examination PW8 Jankar could not tell the name of
doctor who was treating the patient. Doctor had not examined
Ganesh in his presence. He did not record the timing of recording
the dying declaration. He himself had not made endorsement that
Ganesh was conscious and fit to make statement.
25. PW12 Dr. Malge has supported PW4 and PW8. He has
stated that, on 22.01.2001, he was on duty in Ward No. 10 in Civil
Hospital at Nanded. He stated that, the patient Ganesh was brought
with 65% burns. On the same day, at about 08:00 p.m. Magistrate
called him for inquiry about the condition of the patient. The
Magistrate himself also made inquiry about the condition of the
patient. He examined the patient and found him to be conscious and
fit. Accordingly, he made endorsement. He identified his
endorsement on dying declaration Exh. 23 recorded by the Judicial
Magistrate both, at the top and below. He stated that, he was present
near the patient throughout the time of recording the statement. The
23 APEAL603.2002
endorsements on both the dying declarations Exh. 23 and Exh.34
purportedly bear the signatures of PW12 Malge but PW12 has not
deposed about giving endorsement to the Head Constable for
recording the statement. In fact, he has not deposed anything about
recording of dying declaration by Head Constable. He stated that,
Ganesh was admitted in the hospital at 06:30 p.m. He stated that, at
that tie, there was no Head Constable in the Police Chowki in the
hospital nor was he present with the patient. He admitted that the
patient was critical on that night and his hands (upper extremities)
were fully burnt.
26. Evidence of PW12 Dr Malge throws doubt about the
recording of declaration by PW8, as Malge was on duty and he has
not deposed that the Head Constable had recorded the dying
declaration. Pertinently, Mr Jankar met the Judge at 08:00 p.m. and
gave requisition Exh. 22. Then at the same time he could not have
been in the burn ward. His dying declaration does not disclose the
time when its recording was begun and when it was closed but the
endorsement on the same shows that it was recorded at 08:00 p.m.
The FIR came to be registered with the Police Station at 09:35 p.m.
27. Both the dying declarations suffer from infirmity that there
24 APEAL603.2002
is no explanation how the deceased could sign the dying declaration
when his both upper extremities were fully burnt (9% each).
28. There is variance between the dying declaration Exh. 23
recorded by Judicial Magistrate and Exh. 34 recorded by Head
Constable with regard to the motive. According to dying declaration
Exh. 34, the deceased told ASI Jankar (PW8) that the accused met
him in front of the Liquor Shop of Shetty and asked him whether he
would provide him liquor or not. He told the accused that he had no
money and then the accused brought kerosene in a glass and poured
it on his person and set him on fire. The dying declaration recorded
by Judicial Magistrate, however, shows that deceased Ganesh did not
tell PW4 any previous talk between him and the accused. The
deceased told him that he came out of the shop of Shetty and the
accused suddenly poured kerosene from one glass on his person and
set him on fire and he sustained 65% burns. The first question asked
by Judicial Magistrate to him was when and where the incident took
place. Normally the patient would have stated that the incident took
place on that day at 5:30 p.m. but the answer recorded is that the
incident took place on 22.01.2001 at 05:30 p.m. It is somewhat
mechanical. The statement that, deceased Ganesh told Magistrate
that he had sustained 65% burns, is also unnatural.
25 APEAL603.2002
29. PW7 Suresh was the first person to know about the
incident. He deposed that, at about 5:05 p.m. there was oral dispute
between the deceased and the accused in his presence near the liquor
shop of Shetty. then he went to the liquor shop. Thereafter, he
heard the shouts from outside. he does not state after how much
time he heard the shouts but the evidence shows that the incident
had taken place at 05:30 p.m. PW7 Suresh stated that he came out
and found that Ganesh was burning. He stated that, he went to the
house of Ganesh and informed this incident to his brother. As he has
not supported the prosecution, he was cross-examined by the ld. APP
with the permission of the court. he stated that he went to liquor
shop and immediately came out.
(i) He heard shouts as save me when he was near betel shop.
(ii) Thereafter he saw Ganesh burning.
(iii) He denied that, he saw accused hurriedly going from the
spot.
(iv) He admitted that, brother of Ganesh PW1 Ankush came
there and Ganesh told him that Mariba (accused) burnt
him.
30. PW1 Ankush has stated that, at 05:30 p.m. PW7 Suresh
came to him and informed him that Ganesh was set on fire near adda
of Shetti (the words by the accused are absent here). then he came
26 APEAL603.2002
to the spot and found his brother lying on the road. his brother
Ganesh told him that Mariba had demanded from him Rs. 10/- for
liquor and as he refused to make payment, Mariba threatened him
then poured kerosene on his person and set him on fire.
31. PW5 Haribai is mother of the deceased. she has stated
that, she met her son in the hospital and he told her that the accused
Mariba asked Ganesh to provide liquor and as he had no money,
there was verbal exchange (it is shown as oral dispute). Thereafter,
accused Mariba brought kerosene in a glass and poured on the
person of Ganesh and set him on fire by lighting a match stick.
32. The cross-examination of PW1 Ankush, brother of the
deceased Ganesh shows that, there was no previous dispute between
the the accused and deceased Ganesh and accused and himself. He
denied even the suggested dispute regarding a plot. His evidence
shows that deceased Ganesh was doing painting work whereas the
accused used to take contracts of stone. PW5 Haribai has stated that
her son was a labourer. These admissions indicate that, the deceased
was quite poor whereas the accused was doing work of taking
contracts of stones.
27 APEAL603.2002
33. In the light of these facts, we find that the prosecution has
failed to prove the motive for commission of murder. It is not
acceptable that, the accused would pour kerosene and set deceased
Ganesh on fire without any previous dispute and without any
occasion at the time of incident as disclosed in the dying declaration
Exh. 23 recorded by Judicial magistrate. It is equally improbable that
the accused would have set Ganesh on fire only because Ganesh did
not provide him liquor or Rs. 10/- for purchasing liquor. It is quite
improbable that the accused who was financially better placed would
have demanded Rs. 10/- from the deceased Ganesh who was a poor
labourer. Even if it is assumed that the accused would have
demanded liquor or Rs. 10/- for liquor, the non-payment thereof
could not have incited the accused to pour kerosene on his person
and set him on fire.
34. It is also not explained how the accused was having a glass
of kerosene in his possession. It is nobody';s case that it was
premeditated act of the accused. Some statement disclose that the
accused went and brought kerosene. There is evidence that the
house of the accused is near the spot. Still it is highly improbable
that the deceased would have been on the same spot till the accused
would go to his house, collect some kerosene and come with a glass
28 APEAL603.2002
and pour the same on the person of Ganesh. We find a serious
infirmity in the dying declarations that there was no motive for the
accused to commit the ghastly act and about availability of kerosene
for setting Ganesh on fire. The absence of motive is serious lacunae
raising grave doubt about the prosecution story.
35. In the light of these facts, it is necessary to refer to the
evidence of defence witness no. 1 Uttam. He stated that he runs a
betel shop in front of Hotel Maratha Darbar owned by Dinkar Shetty.
Thus, his presence on the spot is natural as he has a betel shop in
front of the spot. He stated that, at the relevant time, there was a
quarrel between deceased Ganesh and his brother and then the
brother took Ganesh to his house. Ganesh consumed liquor. Ganesh
came back in front of the hotel. Then he himself poured kerosene on
his person and set himself on fire. PW1 Uttam stated that, he and
others extinguished the fire by pouring water from a bucket in betel
shop then Ganesh became unconscious due to burns. He stated that
accused Mariba was not on the spot. he was knowing both Mariba
and Ganesh for three years before the incident. he stated that, both
used to come to liquor shop of Shetty for consuming liquor. The spot
is 25 ft away from his betel shop. He stated that, there is heavy
traffic on the road in front of his shop and there were customers
29 APEAL603.2002
present at the time of incident. Ganesh was taken to hospital by his
brother within 10 minutes. DW1 admitted that he had not narrated
the story earlier to anybody. He denied that, Ganesh was shouting
that Mariba had set him on fire. There is evidence to show the
statement of Uttam was recorded by police but the prosecution gave
up him as he was not supporting the prosecution.
36. After carefully going through the evidence of DW1 Uttam,
we do not find any strong reasons to discard his evidence when the
defence story as put up by DW1 Uttam is placed side by side with the
prosecution story. We find that, the prosecution story become
doubtful.
37. Even if it is assumed that, evidence of Judicial Magistrate
(F.C.) should be believed as it is, still we find that there is a
possibility that the deceased might have been tutored so as to avoid
prosecution of commission of suicide u/s 309 IPC. He was
surrounded by his relatives before the recording of dying declaration.
The accused had no motive to commit his murder. There was no
previous enmity. Therefore, we have grave doubt about the
truthfulness of the dying declaration as given by the deceased to the
JMFC.
30 APEAL603.2002
38. It is true that, there is no specific reason why the deceased
would falsely implicate the accused without reason but in this regard
we rely on the observations in para 21 in the judgment of Tarachand
Sutar (cited supra). The dying declaration cannot be believed merely
because no possible reason could be given for accusing the accused
falsely. It can be believed if there are no grounds doubting at all. We
find that, the absence of motive and the possession of kerosene in a
glass in the hands of the accused at the time of the incident (when
the attack was not premeditated are serious infirmities for which
there is no answer in the evidence of the eye-witnesses. it was duty
of the Judicial Magistrate if he felt that such assault was not probable
without any cause, to ask further questions with regard to the cause
of the incident or motive but the ld. JMFC has not made any
questions as to why the accused would set on fire deceased Ganesh
without any reason. The ld. Addl. Sessions Judge found the conduct
of DW1 unnatural in not giving information to the police and
relatives and that his presence was not suggested to the witnesses
and therefore DW1 was disbelieved. But the Addl. Sessions Judge
did not give reasons how the prosecution witnesses could be believed
when the accused had absolutely no motive for commission of
murder of deceased Ganesh. At least there was no motive for
31 APEAL603.2002
commission of such a ghastly act and secondly, Suresh had also not
taken the deceased Ganesh to the hospital immediately. He first
went to the house of the Ganesh to give information. In the
circumstances, if Suresh was present on the spot his priority should
have been to reach the injured Ganesh to the hospital and then to
give information to the police. In addition there is no material to
discard evidence of defence witness Uttam.
39. We have often found in such cases, whenever a person is
brought to the hospital and subsequently dies, the investigating
officer only collects the documents regarding the inquest and post-
mortem. The Investigating Officer does not collect the documents at
the time of admission of such patient in the hospital like bed head
ticket, case paper showing history of injuries and the intimation given
by doctor to the police and who had brought the patient to the
hospital These are very material documents to find out the truth.
The ld. APP in the trial court and the trial Judges also do not pay
attention to these material documents. We therefore express that,
henceforth the Investigating Officer should always collect such
documents during the investigation and if such documents are not
collected, the ld. APP in the trial court should secure and prove such
documents by making application u/s 311 of IPC so that there will be
32 APEAL603.2002
proper material before the ld. trial Judge for finding out the truth.
40. In the light of above observations, we find that, we do have
reasonable doubt about the prosecution case and we find that there is
a possibility that deceased Ganesh might have committed suicide.
the benefit of such reasonable doubt should go to the accused. The
ld. trial Judge has not considered these material aspects and
therefore conviction recorded by her u/s 302 IPC is not tenable.
41. Since the State has not preferred any appeal, it is not
necessary to consider the acquittal under the charge of SC & ST Act,
but it is necessary here to mention that if such offence under SC & ST
act are disclosed, it was duty of the prosecution to hand over the
investigation to the competent police officers as contemplated under
the relevant provisions of the law.
42. We appreciate the valuable assistance provided by learned
Counsel Shri Satyajit Dixit on our request by representing the
appellant.
43. In the result, we hold that the appeal deserves to be
allowed. Hence, the order.
33 APEAL603.2002
ORDER
(I) Criminal Appeal No. 603 of 2002 is allowed.
(II) The conviction of appellant/Mariba u/s 302 IPC recorded
by Addl. Sessions Judge on 19.08.2002 in Sessions Case
No. 84/2001 is hereby set aside and the appellant is
acquitted of the charge u/s 302 IPC. If fine amount is
deposited by him, it shall be refunded to him. The
muddemal property shall be preserved till the appeal
period is not over. the bail bonds of the appellant shall
stand cancelled.
(III) Advocate Mr Satyajit Dixit appointed for representing the
appellant shall be paid fees quantified at Rs. 5,000/-
(Rupees Five Thousand only).
[ A. M. DHAVALE ] [ T. V. NALAWADE ]
JUDGE JUDGE
sgp
