Sunil Deorao Dhawale vs The State Of Mah.Thr.Pso Nagpur
2018 Latest Caselaw 751 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO.64 OF 2006


 Sunil s/o Deorao Dhawale,
 Aged about 27 years, 
 R/o Borgaon Barde Layout, 
 District Nagpur.                                                 ....     APPELLANT


                     VERSUS


 The State of Maharashtra, 
 through the P.S.O., Police Station 
 Koradi, Nagpur, District Nagpur.                                 ....     RESPONDENT

 ______________________________________________________________

 Shri A.V. Gupta, Senior Counsel assisted by Shri Aakash Gupta, Counsel
                            for the appellant,
    Shri A.M. Joshi, Additional Public Prosecutor for the respondent.
 ______________________________________________________________

                              CORAM : SMT. VASANTI A. NAIK &
                                            ROHIT B. DEO, JJ.

DATED : 20 JANUARY, 2018.

th

ORAL JUDGMENT : (PER : ROHIT B. DEO, J.)

The appellant is assailing the judgment and order dated

30-11-2005 rendered by the learned 3rd Additional Sessions Judge,

Nagpur in Sessions Trial Case 408/1996, by and under which the

appellant-accused is convicted for offence punishable under Section

302 of the Indian Penal Code ("IPC" for short) and is sentenced to

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suffer rigorous imprisonment for life and to payment of fine of

Rs.1,000/-.

2. The accused was prosecuted for causing the death of his

wife Smt. Rajani and his mother-in-law Smt Godabai, who indubitably

suffered burn injuries on 12-2-1996 at 9.15 p.m. or thereabout at the

residence of Smt. Godabai situated at Barde Layout, Borgaon within

the jurisdiction of Koradi Police Station. Smt. Rajani, the wife of the

accused succumbed to the burn injuries on 13-2-1996 and her mother

Smt. Godabai expired on 17-2-1996. The learned Sessions Judge was

pleased to record a finding that the death of Godabai was accidental,

which finding is not questioned by the State, and has assumed finality.

The accused is convicted under Section 302 of the IPC for causing the

death of deceased Rajani.

3. The prosecution case, as has unfolded during the course of

the trial is thus :

(i) Deceased Rajani and deceased Godabai suffered burn injuries at

9.15 p.m. on 12-2-1996 in the house of Godabai situated at Borgaon

(Barde) within the jurisdiction of Police Station Koradi, and were

immediately admitted in Mayo Hospital, Nagpur. A.S.I. Shri V.T.

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Vairagade (P.W.5) who was manning the police booth in the hospital

recorded their statements (Exhibit 51 and Exhibit 52 respectively) and

forwarded the same to Koradi Police Station. In the interregnum, API

Shri L.M. Khobragade, who was then attached to Police Station Koradi,

received a message that Rajani and Godabai are admitted in Mayo

Hospital due to burn injuries and after recording the entry in the

station diary, API Shri L.M. Khobragade (P.W.6) rushed to the hospital.

API Shri L.M. Khobragade recorded the statements of Rajani and

Godabai (Exhibit 58 and Exhibit 60 respectively), after the Medical

Officer certified that both the patients were in fit condition to give the

statement. API Shri L.M. Khobragade also addressed a requisition to

the Executive Magistrate to record the statements of Rajani and

Godabai, pursuant to which requisition, the Executive Magistrate Shri

Umesh Kale (P.W.3) recorded the statements of Rajani and Godabai

(Exhibit 44 and Exhibit 45 respectively) at 2.20 a.m. on 13-2-1996. On

the basis of the said statements, API Shri L.M. Khobragade registered

offence under Section 307 of the IPC against the accused. Consequent

to the death of Rajani and Godabai, offence punishable under Section

302 of the IPC was registered against the accused.

(ii) Investigation ensued, upon completion of which charge-

sheet was submitted in the Court of Chief Judicial Magistrate, Nagpur

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who committed the proceeding to the Sessions Court. The learned

Sessions Judge framed charge (Exhibit 7) for offence punishable under

Section 302 of the IPC. The accused abjured guilt and claimed to be

tried in accordance with law. The defence of the accused, as is

discernible from the statement recorded under Section 313 of the

Criminal Procedure Code, 1973 and the trend and tenor of the cross-

examination, is that on the fateful day, annoyed and enraged due to

accused shifting the household articles from the rented premises to the

house of the father of the accused, Rajani set herself afire. Rajani

attempted to catch hold of the infant son aged about ten months. The

accused saved the infant and attempted to extinguish the fire, in the

process suffering severe burn injuries. The defence, further, is that

while Rajani was trying to take the infant son from Godabai, the

clothes of Godabai caught fire.

(iii) The prosecution examined six witnesses to bring home the

charge. P.W.1 Raju Gire and P.W.2 Ramesh Gire, who were the sons of

elder brother of husband of Godabai and who reside on the first floor

of the house, the ground floor of which was the residence of Godabai,

are concededly not eyewitnesses to the incident. P.W.4 Sheshrao Pund

is examined since according to the prosecution version, he took the

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injured Godabai to the Mayo Hospital, Nagpur. P.W.3 Umesh Kale,

P.W.5 Vitthal Vairagade and P.W.6 L.M. Khobragade are examined to

prove dying declarations Exhibit 44, Exhibit 51 and Exhibit 58

respectively.

4. The learned Senior Counsel Shri A.V. Gupta appearing for

the accused submits that the learned Sessions Judge fell in serious

error in predicating the conviction on the dying declarations. Relying

on the enunciation of law by the Hon'ble Apex Court in Amol Singh vs.

State of M.P. reported in 2008(5) SCC 468, Shri A.V. Gupta would

submit that in view of the material inconsistencies inter se, it would be

extremely hazardous and unsafe to base the conviction on the dying

declarations. Shri A.V. Gupta would further submit that irrefragably

the accused suffered severe burn injuries to the extent of 35% on the

fateful day and was hospitalized for fifteen days. The severe burn

injuries suffered by the accused, which the prosecution has made no

endeavour to explain, is suggestive of the innocence of the accused and

his attempt to extinguish the fire, is the submission. Shri A.V. Gupta

contends that the fitness of deceased Rajani who concededly suffered

100% burns to record the dying declaration, and the voluntariness and

truthfulness thereof, is in the realm of serious doubt.

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 (i)      Per contra, learned Additional Public Prosecutor would submit

that although the three dying declarations are not consistent as regards

the pouring of kerosene on the person of Rajani, which is also a finding

recorded by the learned Sessions Judge, the dying declarations are

consistent on the act attributed to the accused of having set Rajani a

fire.

5. Concededly, as is also noted by the learned Sessions

Judge, there is no eyewitness to the incident. The edifice of the

prosecution case is constructed on three dying declarations (Exhibit 44,

Exhibit 51 and Exhibit 58). While the learned Sessions Judge has not

relied on dying declaration (Exhibit 51) on the premise that in the

absence of medical certificate of fitness Rajani's fitness to give the

statement is doubtful, the conviction is based on the dying declarations

Exhibit 44 recorded by P.W.3 Umesh Kale and Exhibit 58 recorded by

P.W.6 L.M. Khobragade. Before we proceed to consider the dying

declarations, it would be apposite to analyse the evidence of P.W.1

Raju Gire, P.W.2 Ramesh Gire, P.W.4 Sheshrao Pund in the context of

the contention of the defence that the dying declarations are not only

marred by inconsistencies inter se, voluntariness and truthfulness

thereof is suspect.

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6. P.W.1 Raju Gire speaks of a quarrel between the accused

and deceased Rajani in the house of deceased Godabai. P.W.1 has

deposed to have seen a burning Rajani coming out of the house and

P.W.2 Ramesh Gire extinguishing the flames. P.W.1 then states that

Godabai was partially burnt and P.W.4 Sheshrao Pund extinguished the

flames. P.W.1 states that P.W.2 took Rajani to Mayo Hospital and

Godabai was admitted to the same hospital by P.W.4 Sheshrao Pund.

At this stage, the witness was declared hostile and was cross-examined

by the learned Additional Public Prosecutor, to scant significant effect.

In the cross-examination of P.W.1, it is elicited that Rajani was

disappointed on coming to know from the accused that the household

articles are shifted from the rented premises to the house of the father

of the accused. It is further elicited that P.W.1 and others persuaded

Rajani to accompany the accused to his father's house, since they did

not find anything wrong in the decision of the accused. P.W.1 admits

that the accused was taken to the hospital by his brother whose hotel is

situated infront of the residence of P.W.1 and Godabai. P.W.2 Ramesh

Gire has deposed that he was standing in the courtyard of the house

and the accused was sitting on the sofa in the front room. P.W.1 states

that he wrapped Rajani in blanket and took her to the Mayo Hospital in

an auto-rickshaw. P.W.2 claims that during the journey Rajani

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disclosed that her husband set her afire. In the cross-examination, the

prelude to the verbal altercation between the accused and deceased

Rajani is brought on record. P.W.2 admits that the accused was sitting

on the sofa in the front room with his infant son. P.W.2 further admits

that after he and Godabai came out of the house and in the courtyard,

Rajani went into the kitchen room and the accused and the infant son

continued to sit on the sofa. It is elicited that when Rajani came out of

the inner room in burning condition, P.W.2 and Godabai went into the

first room. P.W.2 further admits that Rajani was trying to take her

infant son close to her. P.W.2 further admits that Godabai took the son

to save him and her clothes caught fire. P.W.2 admits that accused

prevented Rajani from lifting the infant son and that the accused was

lying in the front room when P.W.2 extinguished the flames. P.W.4

Sheshrao Pund is examined since he admitted Godabai in the hospital.

P.W.4 claims that during the hospital Rajani disclosed that the accused

poured kerosene on her person and set her afire.

7. The spot panchanama dated 13-2-1996 (Exhibit 12) which

is admitted by the defence, records that the west facing house of

Godabai consists of three rooms. The first room is the drawing hall or

sitting room. From the drawing hall one enters the middle room and

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then the kitchen. The seizure of the plastic can of kerosene, match box

and one used match stick is from the kitchen room. Shri A.V. Gupta,

learned Senior Counsel strenuously urges, that testimony of P.W.2

Ramesh Gire that the accused and his son were sitting on the sofa in

the drawing room when deceased Rajani went into the kitchen room, is

sufficient to create a reasonable doubt about the veracity of the

contents of the dying declarations. The submission is, that the defence

of the accused that annoyed and perturbed by the decision of the

accused to shift to the house of his father, Rajani set herself afire and

while extinguishing the flames and attempting to save the infant child

the accused suffered severe burn injuries, is more than probabilised by

the testimony of P.W.2 Ramesh Gire and the topography of the

residence of Godabai as is recorded in the spot panchanama (Exhibit

12). We have given our anxious consideration to the contents of the

spot panchanama (Exhibit 12) and the testimony of P.W.2 Ramesh

Gire, and having done so, we are inclined to accept the submission of

Shri A.V. Gupta that the truthfulness of the dying declarations is not

free from doubt.

8. The submission of Shri A.V. Gupta, Senior Counsel that the

three dying declarations are inconsistent on material aspects is equally

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well merited. Exhibit 51 is the first dying declaration recorded by

P.W.5 Vitthal Vairagade at 10-00 p.m. on 12-2-1996. Exhibit 51

records that Rajani was pouring kerosene in the stove from the can

when the accused pushed her causing the can of kerosene to fall on the

ground. Part of kerosene fell on the person of Rajani and then accused

lit a match stick and threw it on Rajani and fled from the house. Dying

declaration (Exhibit 58) which is recorded by P.W.6 Laxman

Khobragade post 00.30 a.m. on 13-2-1996 records that deceased Rajani

was pouring kerosene in the stove to prepare tea for the accused. The

accused approached her and declared "rq vkrk ;srs dh ukgh ;kpk QSlyk eh

vkrkp djrk" (broadly translated, "let the issue of your willingness or

otherwise to come be decided by me right now) and then after angrily

pushing Rajani, he snatched the kerosene can and after pouring the

kerosene on the person of Rajani set her afire. The dying declaration

(Exhibit 44) recorded by the Special Executive Magistrate (P.W.3) at

2.20 a.m. on 13-2-1996 is in question and answer form. In response to

question 3 which is, "Rajani, how did you suffer burn injuries ?", the

response recorded is that "I was pouring kerosene, which fell". The

next question is "who poured the kerosene ?" and the answer is, "my

husband was besides me. He poured the kerosene."

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9. The dying declarations do indeed, as is argued by Shri

A.V. Gupta, learned Senior Counsel, suffer from the infirmity of inter se

material inconsistencies. In Amol Singh vs. State of M.P., discrepancy

as regards the manner in which the deceased was sprinkled with

kerosene and set on fire is considered to be a material discrepancy. It

would be relevant to refer to the following observations in the said

judgment.

"8. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. (See: Kundula Bala Subrahmanya v. State of A.P.[ (1993) 2 SCC 684]. However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scrutinizing the contents of various dying declaration, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.

9. It is to be noted that the High Court had itself observed that the dying declaration (Exh.P11) scribed by the Executive Officer, (PW9) at about 0435 hours in the same night was not in conformity with the FIR and the earlier dying declaration (Exh.P3) scribed by ASI Balram (PW 8) in so far as different motives have been described. That is not the only variation. Several other discrepancies, even as

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regards the manner in which she is supposed to have been sprinkled with kerosene and thereafter set on fire."

10. A dying declaration is admissible under Section 32(1) of

the Indian Evidence Act. The juristic justification for the admissibility

of a dying declaration as substantive evidence, which is an exception to

the rule against the admissibility of hearsay evidence which is not

tested by cross-examination, is that a person who is facing eminent

death would not ordinarily indulge in false implication or resort to

falsehood. The sanctity of the dying declaration is juristically explained

by the maxim "Nemo moriturus praesumitur mentire". No one at the

point of death is presumed to lie. The Hon'ble Apex Court enunciates

the law thus in Kundula Bala Subrahmanyam Vs. State of Andhra

Pradesh reported in (1993) 2 SCC 684:

"18. Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination, it is not credit worthy, Under Section 32, when a statement is made by a person as to the cause of death or as to any of the circumstances which result in his death, in cases in which the cause of that person's death comes into question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. A dying declaration made by person on the verge of his death has a special sanctity

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as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration. If there are more than one dying declarations then then the court has also to scrutinize all the dying declarations to find out if each one of these passes the test of being trustworthy. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same".

11. It is trite law, that a dying declaration can be the sole basis

for conviction. However, before basing the conviction on the dying

declaration, the conscience of the Court must be satisfied that the

maker of the statement was in a fit condition to give the statement, the

statement is voluntary and truthful and the dying declaration is free

from embellishments and any other infirmity. If there are multiple

dying declarations, like in the present case, the dying declarations must

be closely scrutinized to ascertain whether the different dying

declarations are consistent with each other in material particulars.

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12. We have no hesitation in holding that in view of the inter

se inconsistencies in the dying declarations, which inconsistencies touch

material aspects, it would be unsafe to base the conviction on the dying

declarations. Even de hors the material inconsistencies inter se, in the

teeth of the admissions extracted in the cross-examination of P.W.2

Ramesh Gire and the spot panchanama (Exhibit 12), the truthfulness of

the dying declaration is doubtful. The mental and physical fitness of

deceased Rajani, who concededly suffered 100% burns is further not

free from doubt. Dying declaration Exhibit 51 recorded by P.W.5-

Vitthal Vairagade is discarded by the learned Sessions Judge on the

ground that the fitness certificate from the Medical Officer was not

obtained. Dying declaration Exhibit 44 which is recorded by P.W.3-

Umesh Kale, Special Executive Magistrate at 2.20 a.m. on 13-2-1996

does not bear the endorsement of the Medical Officer. However,

Exhibit 43 which is the requisition addressed by P.W.3 to the Medical

Officer bears the endorsement purportedly by Dr. A.K. Ghomare that

patient is fit to give statement. The Medical Officer is not examined

presumably since the defence admitted requisition Exhibit 43. Exhibit

58 which is the dying declaration recorded by P.W.6 Laxman

Khobragade bears the endorsement by Dr. A.K. Ghomare that the

statement was taken in his presence. The said endorsement is admitted

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by the defence. The dying declaration Exhibit 58, which we have

perused from record, does not record the time of commencement or

conclusion of recording. The thumb impression is so faint that it is

barely visible to the naked eye. The dying declaration Exhibit 58 is not

in narration form. Neither Exhibit 44 nor Exhibit 58 bear an

endorsement of the Medical Officer that the patient was fit to give the

statement and continued to be conscious and well oriented till the

conclusion of the recording of the statements. We are conscious of the

legal position that certificate of doctor is not sine qua non in view of the

Constitutional Bench judgment of the Hon'ble Apex Court in Laxman

vs. State of Maharashtra reported in 2002(6) SCC 710. However,

there is no evidence to suggest that either the Special Executive

Magistrate who recorded dying declaration Exhibit 44 or P.W.6

Laxman Khobragde who recorded dying declaration Exhibit 58 made

any attempt to satisfy themselves that the patient was in a fit condition

to give the statement, and continued to be in fit mental and physical

condition till the conclusion of the recording.

13. It is irrefutable that the accused suffered serious burns in

the incident. The Additional Chief Judicial Magistrate before whom

the accused was produced in remand proceedings has recorded that the

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accused is badly injured. The learned Sessions Judge also holds, with

which finding we concur, that the accused suffered 35% burn injuries.

The severe burn injuries suffered by the accused is a strong

circumstance suggesting that the truthfulness of the dying declarations

is suspect and probabilising the defence on the touch stone of

preponderance of probabilities.

14. We are satisfied, on a holistic re-appreciation of evidence

on record, that the prosecution has failed to bring home the charge

beyond reasonable doubt.

15. The judgment and order impugned is set aside and the

accused is acquitted of the offence punishable under Section 302 of the

IPC.

16. The bail bond of the accused shall stand cancelled. Fine if

any paid by the accused shall be refunded to him.

17. The appeal is allowed and disposed of.

                                 JUDGE                                      JUDGE
adgokar