Bombay High Court
Prakash Bhausaheb Kale & Ors vs State Of Maha on 25 January, 2018
Bench: S.P. Deshmukh
1 94.2003Cri.Apeal.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.94 OF 2003
1. Prakash s/o Bhausaheb Kale
Age : 32 years, Occu : Labour
2. Narmadabai w/o Bhausaheb Kale
Age : 54 years, Occu : Labour
Both r/o. Imampur, Tq. &
Dist. Ahmednagar .. Appellants
Versus
The State of Maharashtra .. Respondent
....
Shri Joydeep Chatterji, Advocate for Appellants
Mrs Vaishali S. Chaudhari, APP for Respondent - State
.....
CORAM : SUNIL P. DESHMUKH &
P. R. BORA, JJ.
Reserved on : 12.01.2018
Pronounced on : 25.01.2018
Judgment (Per P.R. Bora, J) :
1. The appellants were tried by the First Ad-hoc
Additional Sessions Judge, Ahmednagar in Sessions Case No.23
of 1999 on the charges of having committed murder of Sangita
Prakash Kale, the wife of appellant no.1 and the daughter-in-law
of appellant no.2, by pouring kerosene on her person and setting
her ablaze and also for having subjected her to cruelty. The
learned trial Judge found the appellants guilty on both the counts
2 94.2003Cri.Apeal.doc
and has, therefore, convicted both of them for committing the
offences punishable under Sections 498-A & 302 of Indian Penal
Code (hereinafter referred to as the 'I.P.C.') and sentenced them
to suffer rigorous imprisonment for life and fine of Rs.2,000/-
each, in default to suffer simple imprisonment for six months
each for the offence punishable under Section 302 of I.P.C., and
to suffer rigorous imprisonment for three years and fine of
Rs.1,000/- each, in default to suffer simple imprisonment for
three months each for the offence punishable under Section
498-A of I.P.C. Both the sentences are directed to run
concurrently. The appellants have preferred the present appeal
questioning the legality and correctness of the order of
conviction and sentence so passed against them.
2. Deceased Sangita was married to appellant no.1 prior
to about 5 years of the alleged incident. After her marriage, she
started residing with her husband and in-laws at village
Imampur. The matrimonial family of deceased Sangita was
consisting of her husband, father-in-law, mother-in-law and
brother-in-law. As is revealing from the case of the prosecution,
for initial three years, deceased Sangita was treated well by her
husband as well as in-laws. However, since deceased Sangita
could not conceive, the accused started ill-treating her. It was
alleged that, both the accused used to humiliate deceased
3 94.2003Cri.Apeal.doc
Sangita by calling her 'wanzoti' (oka>ksVh) (a woman who cannot
conceive). It was further alleged that, on 07.12.1998 when
deceased Sangita was cooking food on the stove, the appellants
started humiliating her on account of her inability to conceive. It
was also alleged that, the appellants abused deceased Sangita
on that count and eventually poured kerosene on her person and
set her ablaze. It was also alleged that, when deceased Sangita
was engulfed in the flames, the appellants closed the door of the
said room from outside. It was the further case of the
prosecution that, the brother-in-law of deceased Sangita namely
Ramesh tried to save deceased Sangita by dousing the fire and
reached her to the Government Hospital. While under treatment,
Sangita died on 08.12.1998. While admitted in the Civil Hospital,
the statement of deceased Sangita was recorded by the police
and on the basis of the said statement, the crime was initially
registered for the offences punishable under Sections 498-A,
307, 504 & 506 read with Section 34 of I.P.C. After the death of
Sangita, the offence initially registered under Section-307 of
I.P.C. was converted into an offence under Section 302 of I.P.C.
3. During the course of investigation, the Investigating
Officer got prepared the inquest panchanama, post-mortem
examination was done of the dead body of deceased Sangita.
The spot, where the alleged incident was stated to have
occurred, was visited by the Investigating Officer and
4 94.2003Cri.Apeal.doc
panchanama thereof was also prepared. The Investigating Officer
recorded the statements of the necessary witnesses. The
material on record reveals that, the dying declaration of
deceased Sangita was recorded by one Ashok Vitthal Bhor (PW
No.5), who at the relevant time was working as Special
Executive Officer, at Ahmednagar. On requisition of the police,
he visited the Civil Hospital at Ahmednagar on 08.12.1998 and
recorded the statement of deceased Sangita during the period
between 02:00 p.m. to 02:25 p.m. After completing the
investigation, the charge-sheet was filed against the accused in
the Court of Chief Judicial Magistrate, at Ahmednagar. Since the
offences alleged against the appellants were exclusively triable
by the Court of Sessions, the case was committed to the Court of
Sessions.
4. The learned First Ad-hoc Additional Sessions Judge,
Ahmednagar, then framed the charge against the accused on
08.08.2002, the accused did not plead guilty and claimed to be
tried. In order to prove the guilt of the accused, the prosecution
examined five witnesses and also placed on record the
documentary evidence in the form of various panchanamas,
post-mortem examination report and C.A. Reports. PW No.1
Raosaheb Ramchandra Shinde is the panch witness, in whose
presence, the inquest panchanama was drawn on 09.12.1998.
5 94.2003Cri.Apeal.doc
The father of deceased Sangita namely Maruti Dagadu Nikam
testified as the second witness of the prosecution. Dr Bhaskar
Nanasaheb Rannanware, who had conducted the post-mortem
examination on the dead body of the Sangita, was examined as
PW No.3. Namdeo Madhav Aware, in whose presence the
panchanama of the spot was stated to have drawn, was
examined as PW No.4. He did not fully support the prosecution
and hence was required to be cross-examined by the learned
APP. The prosecution evidence was concluded after examination
of Special Executive Magistrate, Shri Ashok Vitthal Bhor, who
stated to have recorded the dying declaration of deceased
Sangita at the Civil Hospital, Ahmednagar on 08.12.1998.
5. According to the accused, deceased Sangita suffered
an accidental death. It was their contention that, on 07.12.1998
in the night when Sangita was cooking the food on the kerosene
stove, it flared up and Sangita caught fire and suffered extensive
burn injuries. The accused denied that, there was any
ill-treatment to deceased Sangita from them. The accused have
also denied the allegation that, they had poured kerosene on
person of Sangita and set her on fire. The accused in their
defence examined one Satish Prabhakar Mule, who had recorded
the dying declaration of deceased Sangita on 07.12.1998 at Civil
Hospital, Ahmednagar. In the dying declaration so recorded by
6 94.2003Cri.Apeal.doc
the said witness, deceased Sangita is alleged to have stated
that, she got accidentally burnt as the stove burst while she was
cooking food.
6. The learned trial Court, after having assessed the
oral as well as documentary evidence brought on record, held
both the accused guilty for the offences punishable under
Sections 302 and 498-A read with 34 of I.P.C. and sentenced
them to suffer punishment as noted herein above. Aggrieved by,
the appellants have preferred the present appeal.
7. Shri Chatterji, learned Counsel appearing for the
appellants - accused assailed the impugned Judgment on various
grounds. The learned Counsel submitted that, the impugned
Judgment is based on presumptions, surmises and conjectures.
The learned Counsel further submitted that, the learned trial
Judge has failed in appreciating that, the prosecution has
intentionally attempted to suppress the first dying declaration
recorded by Special Judicial Magistrate, Shri Satish Mule
(DW No.1) on 07.12.1998, wherein the deceased had
categorically stated that, she sustained burns accidentally. The
learned Counsel submitted that, the prosecution has failed in
explaining why more than one dying declarations were recorded
of the deceased. The learned Counsel further submitted that,
7 94.2003Cri.Apeal.doc
the evidence on record clearly demonstrates that, the second
dying declaration recorded by PW-5 Ashok Vitthal Bhor does not
bear any endorsement upon the same that, deceased Sangita
was in a fit physical condition and conscious state of mind to give
her statement. The learned Counsel submitted that, from the
evidence on record, there is reason to believe that, the opinion
of the doctor has been obtained by the police subsequently on a
separate paper. The learned Counsel submitted that, no reliance
could have been placed by the learned trial Court on such
evidence. The learned Counsel further submitted that, there is
absolutely no evidence on record so as to hold that, the
appellants had subjected deceased Sangita to cruelty on any
count. The learned Counsel submitted that, the trial Court has
failed in appreciating that, had there been substance in the
allegations made by PW-2 Maruti Dagadu Nikam, the father of
deceased Sangita, that she was ill-treated by the appellants, he
would have certainly filed a complaint against the appellants
-accused in that regard. The learned Counsel submitted that,
the trial Court has failed in appreciating that, non-examination of
the Investigating Officer as well as the other material witnesses,
more particularly, Ramesh Kale the brother-in-law of deceased
Sangita was fatal for the case of the prosecution. The learned
Counsel further submitted that, deceased Sangita was admittedly
burnt to the extent of 92% and in such circumstances, serious
8 94.2003Cri.Apeal.doc
doubts are raised 'whether she was in a condition to give her
statement to PW No.5 Ashok Bhor on 08.12.1998 and affix her
thumb impression thereon'. The learned Counsel further
submitted that, the prosecution has utterly failed in brining on
record any evidence to show that, the first dying declaration
given by deceased Sangita was not voluntary. On the contrary,
according to the learned Counsel, the circumstances on record
clearly demonstrate that, the second dying declaration was given
by deceased Sangita at the instance of her parents, who were
constantly near her at the relevant time.
8. The learned Counsel for the accused relied upon the
following Judgments:
(i) P. V. Radhakrishna Vs. State of Karnataka,
AIR 2003 Supreme Court Page No.2859.
(ii) Gaffar Badshaha Pathan Vs. State of
Maharashtra, 2005 AIR SCW 3264.
(iii) Narendra s/o. Vitthalrao Hingane Vs. State
of Maharashtra, 2017 ALL MR (Cri) 5267.
9. The learned APP supported the impugned Judgment
and order. The learned APP submitted that, the prosecution has
duly proved the dying declaration of the deceased recorded by
PW No.5 Ashok Vitthal Bhor. The learned APP submitted that, in
the dying declaration recorded by PW No.5 Ashok Vitthal Bhor,
deceased Sangita had specifically alleged that, the accused
picked up quarrel with her on account of her inability to conceive
9 94.2003Cri.Apeal.doc
and poured kerosene on her person and set her on fire. The
learned APP submitted that, nothing has come on record in the
cross-examination of PW No.5 Ashok Vitthal Bhor so as to
discard or disbelieve his testimony. The learned APP submitted
that, PW No.5 Ashok Bhor has deposed that, while recording the
statement of deceased Sangita, he had obtained the certificate of
the Medical Officer present there that Sangita was fit for giving
her statement. The learned APP further submitted that, merely
because the said Medical Officer has not made an endorsement
on the document of the dying declaration itself, the said
certificate cannot be discarded. The learned APP further
submitted that, as has come on record in the evidence of PW
No.2 Maruti Dagadu Nikam, the first dying declaration was given
by deceased Sangita under the pressure of the accused persons.
The learned APP submitted that, PW No.2 Maruti Dagadu Nikam
has specifically alleged that, deceased Sangita was threatened
with her life if she makes any complaint against the accused
persons. The learned APP submitted that, in such circumstances,
the Investigating Officer was fully justified in getting recorded
the second dying declaration of deceased Sangita and
considering the circumstances on record, the same has been
rightly believed by the learned trial Court. The learned APP
further submitted that, insofar as the ill-treatment to
deceased Sangita is concerned, the evidence of PW-2 Maruti
10 94.2003Cri.Apeal.doc
Dagadu Nikam is sufficient to hold the accused guilty. The
learned APP submitted that, as has come on record, since
deceased Sangita did not conceive even after four years of her
marriage, the accused were aggrieved and had started harassing
Sangita on that count. The learned APP further submitted that,
the injuries, which are noticed on person of deceased Sangita
and the percentage of the burn have ruled out the possibility of
the accidental or suicidal death of deceased Sangita and only
conclusion which emerges lead to an inference that, Sangita
suffered homicidal death. The learned APP submitted that, the
unnatural death of deceased Sangita, since had occurred within
5 years of her marriage, presumption of ill-treatment has to be
raised under Section 113-A of the Evidence Act. The learned APP
further submitted that, merely because the Investigating Officer
was not examined as a witness before trial Court would not
nullify the existing evidence on record. The learned APP
submitted that, the existing evidence on record itself is sufficient
to prove the guilt of the accused and the learned trial Court has
rightly held the accused persons guilty for committing murder of
deceased Sangita.
10. In support of her argument, the learned APP relied
upon the following Judgments:
(i) Behari Prasad Vs. State of Bihar, Supreme
11 94.2003Cri.Apeal.doc
Court, decided on January 09, 1996.
(ii) Laxman Vs. State of Maharashtra, Supreme
Court, decided on August 27, 2002
(iii) Suresh Vishwanath Jadhav Vs. State of
Maharashtra, 2006 CRI.L.J. 4277
11. Perusal of the impugned Judgment reveals that,
learned trial Judge has relied upon the dying declaration
recorded of deceased Sangita by PW-5 Ashok Vitthal Bhor as well
as the testimony of PW-2 Maruti Dagadu Nikam, the father of
deceased Sangita.
12. In the dying declaration (Exh.42) recorded by PW-5
Ashok Vitthal Bhor, deceased Sangita has specifically stated that,
her husband and mother-in-law poured kerosene on her person
and set her on fire at about 08:00 p.m. on 07.12.1998.
Deceased Sangita, in her said statement, had also disclosed to
PW-5 Ashok Bhor that, her inability to conceive was the reason
for her husband and mother-in-law to pour kerosene on her
person and set her on fire. Deceased Sangita had also stated
that, her brother-in-law namely Ramesh Kale extinguished the
fire by putting quilt on her person and brought her in the
hospital. Lastly, she has reiterated that, she had a complaint
against Narmadabai Bhausaheb Kale i.e. mother-in-law and
Prakash Bhausaheb Kale i.e. her husband. As has been observed
by the learned trial Judge, the defence did not bring on record
12 94.2003Cri.Apeal.doc
any circumstance in the cross-examination of PW-5 Ashok Vitthal
Bhor so as to disbelieve his testimony before the Court.
13. It is the matter of record that, the accused examined
DW-1 Satish Prabhakar Mule. It has come on record that on
07.12.1998 in the period between 10:55 p.m. to 11:10 p.m., he
had recorded the statement of deceased Sangita in the Civil
Hospital, at Ahmednagar. The dying declaration so recorded by
DW-1 Satish Mule has been exhibited as Exh.55. As deposed by
DW-1 Satish Mule, it was stated by deceased Sangita in her said
dying declaration that, when she was trying to start the kerosene
stove for cooking food, it flared and because of that, she got
burnt. It was also stated by deceased Sangita in her said
statement that, she does not have any complaint against
anybody in her house.
14. As has been deposed by DW-1 Satish Mule, he had
received a requisition from Police Station M.I.D.C. in the night of
07.12.1998 requesting him to come in the Civil Hospital, at
Ahmednagar and to record the statement of Sangita Prakash
Kale, who was burnt to the extent of 90%. DW-1 Satish Mule
has also deposed that, before recording the statement of
deceased Sangita, he had asked for the opinion of the Medical
Officer in the Civil Hospital about the physical and mental fitness
13 94.2003Cri.Apeal.doc
of deceased Sangita for giving her statement. Accordingly the
concerned Medical Officer has certified deceased Sangita to be fit
for giving her statement and had made the endorsement in that
regard prior to recording the statement and also after recording
of the statement.
15. The learned trial Judge has discarded the dying
declaration at Exh.55 brought on record by the defence and has
preferred to rely upon the dying declaration at Exh.42 recorded
by PW-5 Ashok Vitthal Bhor.
16. While criticizing the impugned judgment, the entire
thrust of Shri Chatterji, learned Counsel appearing for the
appellants was on the point that, where more than one dying
declarations were recorded and the deceased made contradictory
statements in the said dying declarations, in no case the accused
could have been convicted on the basis of one of such dying
declaration. The learned Counsel in support of his said contention
relied upon the judgment of the Division Bench of this High Court
in the case of Narendra s/o. Vitthalrao Hingane Vs. State of
Maharashtra, 2017 ALL MR (Cri) 5267. The learned Counsel
pointed out the observations made by the Division Bench in
para-10 of the said Judgment, which read thus :
"10. The approach of the Court should not be
14 94.2003Cri.Apeal.doc
"pick and choose". When there are two sets of
Dying Declarations and there is variance on
material aspect. If one shows that incident
caused due to accident and another shows
otherwise, and if there is nothing available to
show any suspicious circumstance around the
Dying Declaration which absolves the accused
then in that event benefit must go to the
accused. In that view of the matter, according to
us, this is not a case wherein this Court should
stamp its approval to the judgment and order of
conviction. Resultantly, we pass the following
order."
17. The learned Counsel submitted that, in view of the
law laid down in the aforesaid Judgment, the appellants deserve
to be acquitted.
18. Relying upon the Judgment of the Hon'ble Apex
Court in the case of Gaffar Badshaha Pathan Vs. State of
Maharashtra, 2005 AIR SCW 3264, Shri Chatterji submitted that,
by bringing on record the dying declaration of deceased Sangita
recorded by DW-1 Satish Mule, wherein she has specifically
stated to have accidentally burnt, the accused have sufficiently
discharged the burden on them to prove their defence that,
deceased Sangita did not suffer homicidal death, but died due to
an accidental death. The learned Counsel submitted that, as has
been observed by the Hon'ble Apex Court in the said Judgment,
burden on the accused to prove the dying declaration is much
lighter than on the prosecution. The learned Counsel submitted
15 94.2003Cri.Apeal.doc
that, the accused is only to prove the reasonable probability.
The learned Counsel further submitted that, in view of the case
attempted to be made out by the prosecution that, deceased
Sangita suffered homicidal death and that it were the accused,
who poured kerosene on her person and set her on fire, the
probability of deceased Sangita suffering an accidental death has
been reasonably proved by the accused by bringing on record
and duly proving the dying declaration given by her on
07.12.1998 to DW-1 Satish Mule. In the circumstances,
according to learned Counsel, the conviction of the accused
cannot be sustained.
19. The learned Counsel also relied upon one more
Judgment of the Hon'ble Apex Court in the case of
P.V. Radhakrishna Vs. State of Karnataka, AIR 2003 Supreme
Court 2859. Inviting our attention to the observations made by
the Hon'ble Apex Court in para nos.13 & 14 of the said
Judgment, the learned Counsel submitted that, unless the dying
declaration is absolutely free from any doubt and inspires full
confidence, the same cannot be acted upon to base the
conviction of the accused. The learned Counsel submitted that,
the impugned Judgment cannot be upheld in light of the
principles laid down in the aforesaid Judgment of the Hon'ble
Apex Court.
16 94.2003Cri.Apeal.doc
20. It was also the argument of the learned Counsel
that, it was incumbent on part of the prosecution to explain the
circumstances why a second dying declaration was required to
be recorded of deceased Sangita, when on 07.12.1998 itself her
declaration was recorded by DW-1 Satish Mule. In absence of
any such explanation from the side of the prosecution, according
to the learned Counsel, no reliance can be placed on the
subsequent dying declaration recorded of the deceased. The
learned Counsel had further submitted that, from the
circumstances on record, it is so explicit that, the second dying
declaration was the result of constant tutoring by the mother
and father of deceased Sangita. The learned Counsel submitted
that, it has come on record that, mother of deceased Sangita
was all the while along with her. The learned Counsel submitted
that, the possibility of the father and mother of deceased
Sangita to have compelled deceased Sangita to give a statement
falsely implicating the accused is difficult to be ruled out.
21. The learned Counsel further submitted that, the
second dying declaration at Exh.42, otherwise also deserves to
be ignored and discarded for the reason that, the prosecution
has not brought on record any evidence showing that, while
giving her such statement, deceased Sangita was in fit physical
17 94.2003Cri.Apeal.doc
and mental condition.
22. It was also the submission of the learned Counsel
that, if the evidence of PW-2 Maruti Dagadu Nikam is to be
believed that, deceased Sangita had disclosed to him that, she
was being humiliated and tortured by accused persons on
account of her inability to conceive and that was the reason that
she was burnt by accused persons by pouring kerosene on her
person, it would have been the natural conduct of PW-2 Maruti
Dagadu Nikam to immediately approach the nearest Police
Station and to lodge the report against the accused persons and
he would not have waited till the death of deceased Sangita.
23. We have carefully perused the impugned Judgment.
The learned trial Judge has disbelieved the dying declaration
recorded by DW No.1 Satish Mule observing that, the statement
so given to DW No.1 Satish Mule by deceased Sangita does not
appear to have been given voluntarily and possibility that, the
same was given under the pressure of the husband and mother-
in-law cannot be ruled out. The second reason, which the
learned Judge has assigned is that, the circumstances on the
spot as well as the burn injuries caused to deceased Sangita
have raised serious doubt whether such injuries could have been
caused in an accident, stated to be happened because of flaring
18 94.2003Cri.Apeal.doc
of the stove. As has been observed by the learned trial Judge,
burn injuries noticed to have been caused to deceased Sangita
indicate the possibility of somebody pouring kerosene on her
person. The learned Judge has recorded a conclusion that, it
were the accused only who poured kerosene on person of
deceased Sangita causing her burn injuries to the extent of
90%.
24. We have carefully perused the evidence of DW-1
Satish Mule as well as the evidence of other witnesses. We have
examined the medical evidence on record. It is apparently
revealed that, the conclusion recorded by the learned trial Judge
that, when DW-1 Satish Mule had been to Civil Hospital for
recording the statement of deceased Sangita, persons who were
present near Sangita were all her relatives from the matrimonial
side, is based only on surmises. There is nothing on record to
show, who were the persons present near deceased Sangita at
the relevant time and whether they were the relatives and if yes,
whether from the matrimonial side or parental side. The further
conclusion recorded by the learned trial Judge is also based on
conjecture and does not have any factual base. We have also
come across some of the observations made by the learned
Special Judge, which are wholly unconscionable. In para 8,
which runs in about 7 pages, at one place, the learned Judge has
19 94.2003Cri.Apeal.doc
made the following observations :
"It is an admitted fact that, deceased Sangita
had been set on fire in her house at the
matrimonial home, where she was residing with
accused. It has been proved by the prosecution
that, accused nos.1 and 2 had set her on fire at
the time of accident."
On what basis the learned Judge has recorded the aforesaid
conclusion is not understood. When it is the specific defence of
the accused that, deceased Sangita got accidentally burnt, the
observation made by the learned trial Judge that, "it is an
admitted fact that, deceased Sangita had been set on fire"
appears wholly unconscionable. Further observation made by the
learned Judge that, "it has been proved by the prosecution that,
accused nos.1 and 2 had set her on fire at the time of accident"
is more unconscionable. If according to the learned Judge
catching fire by deceased Sangita was an accident, how the
learned Judge has also observed that, accused nos.1 and 2 had
set her on fire at the time of accident meaning thereby that
Sangita suffered a homicidal death. Further, there is no direct
evidence on record to show that, accused nos.1 and 2 set
Sangita on fire. At least, we have not come across any such
unimpeachable evidence to reach to any definite conclusion that,
it were accused nos.1 and 2, who set on fire deceased Sangita,
except the dying declaration at Exh.42, recorded by PW-5 Ashok
Bhor, the reliability of which we will have to independently
20 94.2003Cri.Apeal.doc
examine hereinafter. We are, thus, unable to subscribe the
reasons which are assigned by the learned trial Judge for
rejecting the dying declaration at Exh.55 recorded by DW-1
Satish Mule.
25. Law is well settled that, in a case where there are
more than one dying declarations, the truth should be judged
with reference to all such dying declarations. In the instant
matter, admittedly, there are two dying declarations one at
Exh.42 and another at Exh.55. As noted by us earlier, it was
vehemently argued by Shri Chatterji, learned Counsel appearing
for the accused that, the approach of the Court should not be
'pick and choose', when there are two sets of dying declaration
and there are variance on material aspects. Relying on the
Judgment of the Division Bench of this Court in the case of
Narendra s/o. Vitthalrao Hingane Vs. State of Maharashtra (cited
supra), it was argued by Shri Chatterji that when the dying
declaration at Exh.42 shows that, incident caused accidentally
and the subsequent dying declaration at Exh.55 show otherwise
and when there is no material to show any suspicious
circumstance around the dying declaration at Exh.42, which
absolve the accused, the benefit of doubt must go to the
accused.
21 94.2003Cri.Apeal.doc
26. As against it, learned APP, Mrs Vaishali S. Chaudhari,
placing her reliance on the another Division Bench Judgment of
this Court in the case of Suresh Vishwanath Jadhav Vs. State of
Maharashtra (cited supra) submitted that, the circumstances
which are involved in the present case are as similar to the
circumstances which were involved in the cited case. The
learned APP submitted that, in the said matter also, two dying
declarations were recorded and in first dying declaration the
deceased had stated that, she got burnt due to bursting of stove
and in second dying declaration she implicated her husband. The
learned APP further submitted that, the Division Bench had in
detail examined the evidence on record and had accepted the
second dying declaration to be the truthful version of the
deceased having regard to the other circumstances on record,
more particularly, the situation on the spot of occurrence and
nature of burn injuries caused to the deceased.
27. The learned APP submitted that, in the instant
matter also, deceased Sangita in her first dying declaration has
stated that, she got burnt due to bursting of stove and in the
second dying declaration she has implicated her husband and
the mother-in-law. The learned APP further submitted that, if
the situation on the spot of occurrence is seen, the fact allegedly
stated by deceased Sangita in her first dying declaration that,
22 94.2003Cri.Apeal.doc
she caught fire due to bursting of stove when she was cooking
the food does not appear to be a truthful version. The learned
APP submitted that, the spot panchanama does not depict that,
around the stove some utensils were also noticed so that an
inference can be drawn that, at the relevant time deceased
Sangita was preparing food or has made preparation for cooking
food. The learned APP submitted that, had it been the fact that,
deceased Sangita was attempting to start the kerosene stove for
the purpose of cooking and while doing so it got flared or burst
and the kerosene was sprinkled on her person, around the said
kerosene stove, it must have been noticed that, there were
utensils required for cooking food and also the other essential
articles like the vegetables, oil, flour, water etc. The learned APP
submitted that, the spot panchanama does not show that any of
such articles were noticed on the spot. The learned APP
submitted that, situation at the spot completely rules out the
story of the defence that, at the relevant time deceased Sangita
was starting kerosene stove for cooking food.
28. The learned APP further submitted that, if the nature
of burn injuries is considered, in no case, it can be accepted
that, the said injuries could have been caused because of flaring
of the stove. The learned APP submitted that, when deceased
Sangita was burnt to the extent of 90%, the injuries so caused
23 94.2003Cri.Apeal.doc
to her indicate the possibility of only homicidal death and not
accidental. The learned APP further submitted that, as has come
on record in evidence of PW-2 Maruti Dagadu Nikam, deceased
Sangita had disclosed to him that, her husband and mother-in-
law poured kerosene on her person and set her on fire by picking
quarrel with her on account of her inability to conceive. The
learned APP submitted that, conjointly considering the facts
stated in the aforesaid dying declaration by deceased Sangita,
the situation as was existing on the spot and the testimony of
PW-2 Maruti Dagadu Nikam, there remains no doubt that,
deceased Sangita suffered a homicidal death and it were the
accused, who set her on fire on the date of incident.
29. The learned APP submitted that, in the case of
Suresh Vishwanath Jadhav Vs. State of Maharashtra (supra) the
Division Bench of this Court had relied upon the second dying
declaration considering the circumstances on record and in the
instant case also the same course deserves to be followed and
the conviction recorded by the learned trial Judge needs to be
maintained.
30. As noted earlier, in absence of any cogent and
sufficient evidence, though we are unable to agree with the
finding recorded by the learned trial Judge that, the persons who
24 94.2003Cri.Apeal.doc
were present, when DW-1 Satish Mule had been to the hospital
for recording the dying declaration of deceased Sangita, were
the relatives of deceased Sangita from the matrimonial side and
the dying declaration so given by deceased Sangita to DW-1
Satish Mule was thus under the pressure of the said relatives
and more particularly of the accused persons and have also
noted that, some of the observations made and conclusions
recorded by the learned trial Judge are wholly unconscionable
and have therefore rejected the same also, we find that some of
the doubts raised by the learned APP in regard to the dying
declaration at Exh.55 indicating that Sangita got accidentally
burnt, are difficult to be ruled out.
31. From the situation as was existing on the spot of
occurrence, it is difficult to accept the contention of the defence
that, at the relevant time deceased Sangita was starting the
kerosene stove for preparing the night meals and while doing so
the said kerosene stove flared up because of which deceased
Sangita caught the fire. Had it been the fact that, deceased
Sangita was attempting to start kerosene stove for preparing the
night meals, around the stove the essential articles like
vegetables, water, oil, flour etc., and also the utensils for cooking
the food must have been noticed around the said stove. Non
existence of any of such article near or around the stove creates
25 94.2003Cri.Apeal.doc
serious doubt about the case of accidental death sought to be
made out by the defence.
32. Similarly, looking to the nature and location of burn
injuries all over the body of deceased Sangita and the
percentage of the said burn injuries to the extent of 92% also
create serious doubts about the theory of accident. Having
regard to the fact that, back of deceased Sangita had also been
completely burnt, the possibility of somebody pouring the
kerosene on person of deceased Sangita is difficult to be ruled
out. The C.A. Reports also spell out that, so far as the clothes of
deceased Sangita, which were put for test for detection of
kerosene, the kerosene residues were detected on all those
clothes. As was submitted by the learned APP, the aforesaid
circumstance apparently are indicative of somebody pouring
kerosene on person of deceased Sangita and not of an accidental
death.
33. After having considered the evidence as aforesaid,
the fact allegedly stated by deceased Sangita in her dying
declaration at Exh.55 that she got accidentally burnt as the
kerosene stove flared up, appears to be quite doubtful and
difficult to be accepted.
26 94.2003Cri.Apeal.doc
34. However, as because the story put forth by the
defence that, deceased Sangita suffered accidental death is
shrouded with doubts, merely on that basis it would be unsafe to
hold the case of homicidal death as has been pleaded by the
prosecution to have been proved. It will have to be closely
scrutinized whether the evidence brought on record by the
prosecution to prove that, deceased Sangita suffered homicidal
death and it were the accused who knowingly and intentionally
caused her death by pouring the kerosene on her person and
setting her ablaze, is worthy of credence and whether the
evidence so brought on record unimpeachably indicates the guilt
of the accused and sufficiently proves the complicity of the
accused in commission of the alleged crime.
35. In order to prove that, deceased Sangita suffered
homicidal death and the accused are the culprits, the thrust of
the prosecution is on the evidence in the form of dying
declaration of deceased Sangita recorded by PW-5 Ashok Bhor
and on the testimony of PW-2 Maruti Nikam, father of deceased
Sangita. Medical and forensic evidence is equally placed reliance
upon to prove the allegations against the accused persons.
First, we would prefer to scrutinize the evidence as about the
second dying declaration of deceased Sangita on record.
27 94.2003Cri.Apeal.doc
36. As has been deposed by PW-5 Ashok Bhor, at the
relevant time he was working as the Special Executive Officer, at
Ahmednagar and on 08.12.1998 police person of M.I.D.C. Police
Station, Ahmednagar had been to him with a letter requesting
him to record the dying declaration of deceased Sangita, who
was stated to be admitted in Civil Hospital, Ahmednagar. During
the course of his evidence before the Court, the said letter was
duly proved and has been marked at Exh.40. As has been
further deposed by PW-5 Ashok Bhor, he thereafter reached to
Civil Hospital, Ahmednagar and met resident Medical Officer and
informed him about the letter received to him from the police for
recording the dying declaration of deceased Sangita. PW-5 Ashok
Bhor has further deposed that, the said doctor then had
examined deceased Sangita and informed him that, she was in a
position to give her statement. It has also come on record in his
evidence that, the said doctor had made an endorsement in his
presence on one paper. The said paper was shown to the said
witness during the course of his evidence before the Court and
the same was marked at Exh.41. After having perused the said
paper at Exh.41, PW-5 Ashok Bhor deposed that, the said paper
bears the endorsement and the signature of the said doctor and
it is the same document on which in his presence the
endorsement was made by the said doctor. PW-5 also deposed
that, he had obtained the endorsement/certificate of the said
28 94.2003Cri.Apeal.doc
resident Medical Officer on the letter addressed to him by the
police, instead of taking the endorsement on the document of
dying declaration because he forgot at that time to obtain the
endorsement on the paper / document of dying declaration itself.
It has further come on record in the evidence of PW-5 Ashok
Bhor that, then he recorded the dying declaration of deceased
Sangita in question and answer form. PW-5 Ashok Bhor also
deposed that, in her dying declaration, deceased Sangita had
stated to him that, her husband and mother in law set her on
fire for the reason that, she was unable to conceive. PW-5 Ashok
Bhor also deposed that, after the dying declaration so given by
deceased Sangita was written by him, he read over the contents
of the said declaration to deceased Sangita and she admitted the
contents so recorded to be true and correct. PW-5 Ashok Bhor
has further deposed that, he then obtained the left thumb
impression of deceased Sangita on the said dying declaration
and also made his signature on the said declaration evidencing
that, the said declaration was made before him. The said dying
declaration was shown to PW-5 Ashok Bhor during the course of
his evidence before the Court and on perusal of the same, he
had identified the said document and had stated that, the
document so shown was the same declaration, which was in his
hand writing and was bearing his signature and the office seal
over it.
29 94.2003Cri.Apeal.doc
37. It was vehemently argued by the learned APP that,
through the evidence of PW-5 Ashok Bhor the prosecution has
fully proved the dying declaration given by deceased Sangita on
08.12.1998, wherein she has specifically disclosed that, accused
nos.1 & 2 poured kerosene on her person and set her on fire. It
was also argued by learned APP that, as has been deposed by
PW-5 Ashok Bhor, deceased Sangita was certified to be fit for
giving her statement by the resident medical doctor before
recording her statement. It was also argued by learned APP that,
nothing was brought on record through the cross-examination of
PW-5 Ashok Bhor so as to discard or disbelieve his evidence.
According to the learned APP, the dying declaration of deceased
Sangita has been proved beyond reasonable doubts through the
evidence of PW-5 Ashok Bhor and it alone was sufficient to hold
the accused persons guilty for knowingly and intentionally
causing the death of deceased Sangita by pouring kerosene on
her person and setting her on fire.
38. It was also argued by the learned APP that, the
objection raised by Shri Chatterji, learned Counsel for the
accused that, since there was no endorsement on the dying
declaration that, the declarant was in a fit physical and mental
condition, no reliance can be placed on such dying declaration,
30 94.2003Cri.Apeal.doc
was liable to be rejected in view of the law laid down by the
larger Bench of the Hon'ble Supreme Court consisting of Hon'ble
Five Judges of the Supreme Court in the case of Laxman Vs.
State of Maharashtra (cited supra). The learned APP submitted
that, as has been held by the Hon'ble Apex Court, the mere fact
that, the endorsement was made not on the declaration but on
the application would not render the dying declaration suspicious
in any manner if the Magistrate in his evidence states that, he
had ascertained from the doctor whether she was in a fit
condition to make a statement.
39. The submissions as were made by the learned APP
were opposed by Shri Chatterji, the learned Counsel appearing
for the accused, with equal vehemence. The learned Counsel
inviting our attention to the document at Exh.41 submitted that,
letter allegedly issued to the Medical Officer, Civil Hospital,
Ahmednagar was not issued by PW-5 Ashok Bhor, but was
admittedly issued by the Police Sub-Inspector of the M.I.D.C.,
Police Station. The learned Counsel submitted that, PW-5 Ashok
Bhor has also admitted the said fact in his cross-examination.
The learned Counsel further submitted that, such course was
wholly impermissible and raises serious doubt whether in fact
the endorsement as is appearing on the document at Exh.41 was
made by the concern Medical Officer before recording of the
31 94.2003Cri.Apeal.doc
statement by PW-5 Ashok Bhor.
40. Inviting our attention to the F.I.R. in the matter, the
learned Counsel submitted that, the said FIR is in fact a
complaint given by deceased Sangita and the same has been
recorded by the same PSI, under whose signature, the letter at
Exh.41 was issued to Medical Officer of the Civil Hospital. The
learned Counsel submitted that, there is every reason to believe
that, on the basis of the endorsement made on Exh.41 said PSI
had recorded the statement-cum-complaint of deceased Sangita.
The learned Counsel submitted that, from the aforesaid
evidence, it is quite clear that, the physical and mental fitness of
deceased Sangita was not ascertained by PW-5 Ashok Bhor
before recording the statement of deceased Sangita and the
requisition at Exh.41, which was issued by PSI, M.I.D.C. Police
Station before his recording the statement-cum-complaint of
deceased Sangita has been malafide shown to be the requisition
issued before recording the statement of deceased Sangita by
PW-5 Ashok Bhor. The learned Counsel submitted that,
reasonable doubts are certainly created whether the very
essential requirement of ascertaining the fitness of deceased
Sangita before recording her statement at Exh.42 was complied
with or not.
32 94.2003Cri.Apeal.doc
41. The learned Counsel submitted that, the justification
given by PW-5 Ashok Bhor in his testimony before the Court
that, he forgot to obtain the endorsement on the paper /
document of the dying declaration is quite improbable and
unbelievable. The learned Counsel further submitted that, as
has been deposed by PW-5 Ashok Bhor, he had obtained the
endorsement / certification of the resident Medical Officer on the
letter addressed to Medical Officer by police, instead of taking
the endorsement on the paper of dying declaration. The learned
Counsel submitted that, when as per his own contention, PW-5
Ashok Bhor had obtained the endorsement from the resident
Medical Officer on the letter addressed to the said Medical Officer
by police, instead of taking the endorsement on the paper of
dying declaration, there appears no relevance in the further fact
stated by PW-5 Ashok Bhor that, he forgot to obtain such
endorsement on the paper of dying declaration. The learned
Counsel further submitted that, the aforesaid conduct of PW-5
Ashok Bhor raises serious doubt about the facts stated by him
that, he obtained the certification from the resident Medical
Officer.
42. The learned Counsel further submitted that, PW-5
Ashok Bhor in his cross-examination has candidly admitted that,
he at his own did not ascertain whether deceased Sangita was in
33 94.2003Cri.Apeal.doc
a position to give her statement. The learned Counsel submitted
that, in view of the aforesaid admission given by PW-5 Ashok
Bhor coupled with the fact that, the dying declaration recorded
by him did not bear any endorsement from the Medical Officer
certifying that, the declarant was in a condition to give her
statement, there remains no evidence on record to show that,
deceased Sangita was in a fit condition when she gave her
statement to PW-5 Ashok Bhor. In the circumstances, according
to learned Counsel no reliance can be placed on the dying
declaration so recorded by PW-5 Ashok Bhor.
43. It was also the contention of the learned Counsel
Shri Chatterji that, having regard to the medical evidence on
recored also the only inference which emerges is that, at the
relevant time there was no possibility of deceased Sangita to be
in a condition of giving her statement. The learned Counsel
invited our attention to the cross-examination of PW-3
Dr. Bhaskar Nanasaheb Rananavre, wherein he has explained
that, due to burn injuries, the blood becomes thick and
resultantly the percentage of fluid from the blood goes on
decreasing. It was also explained by PW-3 Dr. Bhaskar
Rananavre that, oxygen supply to the brain is made through the
fluid in the blood and if the fluid in the blood gets decreased
because of the thickness of the blood, the person concern may
34 94.2003Cri.Apeal.doc
go in coma within 5 to 6 hours after his blood becomes thick.
The learned Counsel invited our attention to the specific
admission given by PW-3 Dr. Bhaskar Rananavre that, the
injuries as were noticed on the dead body of deceased Sangita
were suggestive of the possibility of her going in coma before
recording her statement by PW-5 Ashok Bhor. The learned
Counsel submitted that, the dying declaration stated to have
been recorded by PW-5 Ashok Bhor, was admittedly recorded
after the period of about 18 hours of receiving the burn injuries
by deceased Sangita. In the circumstances, according to the
learned Counsel, there was no possibility of deceased Sangita to
be in a condition for giving her statement to PW-5 Ashok Bhor.
44. The learned Counsel further submitted that, even if it
is assumed that, deceased Sangita was in a condition to give her
statement to PW-5 Ashok Bhor, the further possibility of her
being tutored by her mother and father is difficult to be ruled
out. The learned Counsel submitted that, the evidence on record
clearly suggests that, for whole of the period the mother and
father of deceased Sangita were at her side in the Civil Hospital
at Ahmednagar after they arrived in the night of 07.12.1998 till
the death of deceased Sangita.
45. The learned Counsel further submitted that, there
35 94.2003Cri.Apeal.doc
are serious doubts whether the left thumb impression alleged to
be obtained by PW-5 Ashok Bhor below the dying declaration at
Exh.41 is of deceased Sangita. The learned Counsel submitted
that, as has been stated by PW-3 Dr. Bhaskar Rananavre,
deceased Sangita was burn from nail upto shoulder, and had
suffered the deep burn injuries because of which the entire
surface layer was burnt. Having regard to the said evidence,
according to the learned Counsel, it was unbelievable that,
deceased Sangita could have affixed her left thumb impression
on the alleged dying declaration at Exh.42. The learned Counsel
further submitted that, serious doubts are raised about the said
thumb impression to be of deceased Sangita on one more
ground that, no one including PW-5 Ashok Bhor has attested the
said left thumb impression to be of deceased Sangita.
46. The learned Counsel further submitted that, there is
no signature of PW-5 Ashok Bhor below the statement at Exh.42
as well as an endorsement that, he recorded the said statement
according to the version of deceased Sangita. The learned
Counsel further submitted that, the alleged signature of PW-5
Ashok Bhor on the alleged dying declaration at Exh.42 is at the
left corner of the said dying declaration. Inviting our attention to
the said signature, the learned Counsel submitted that, when the
entire dying declaration is appearing to have been recorded in
36 94.2003Cri.Apeal.doc
blue ink, the signature of PW-5 Ashok Bhor is curiously in the
black ink. The learned Counsel submitted that, as has been
deposed by PW-5 Ashok Bhor, the alleged dying declaration at
Exh.42 was recorded by him in his own hand writing. In the
circumstances, according to the learned Counsel, serious doubts
are created of the alleged signature of PW-5 on the said
document in the different ink than used while recording the
whole of the remaining statement and there is reason to believe
that, PW-5 had subsequently made the said signature.
47. The learned Counsel further submitted that, the
alleged dying declaration cannot be relied upon for one more
reason that, a leading question was put to the declarant as to
"rqEgkyk dks.kh isVoys fdaok tkGys?" which suggests that it was
presumed by PW-5 Ashok Bhor that, it was a case of homicidal
death. The learned Counsel also invited our attention to
question no.12 in the said proforma dying declaration, which is
to the effect "rqEgkyk tkGqu ?ks.;kps @ tkG.;kps dkj.k dk; ?" The
learned Counsel submitted that, the said proforma seems to
have been prepared presuming that, the person whose
statement has to be recorded in the said proforma is either set
on fire by somebody or has himself or herself set on fire as an
attempt of suicide. The learned Counsel submitted that, it would
be very unsafe to rely upon the dying declaration recorded in
37 94.2003Cri.Apeal.doc
such a proforma.
48. The learned Counsel further submitted that, in the
said dying declaration at Exh.42 deceased Sangita has not
disclosed that, on the earlier day also someone has recorded her
statement-cum-dying declaration and while giving said
statement she was threatened by the accused to state that, she
got burnt because of bursting of stove and that she was not
having any complaint against anybody. The learned Counsel
submitted that, in the case of Suresh Vishwanath Jadhav Vs.
State of Maharashtra (cited supra), deceased therein while
giving her second dying declaration had specifically disclosed the
reason for not giving the names of the persons, who poured
kerosene on her and set her on fire in her first dying declaration
as she was threatened by them that, if she implicates their
names, her small daughter would be killed. The learned Counsel
submitted that, that was the main reason that, the Division
Bench of this Court in the aforesaid matter find it expedient to
rely upon the second dying declaration though there was on
record first dying declaration wherein the deceased had stated
that, she caught fire due to bursting of stove. The learned
Counsel submitted that the aforesaid Judgment may not apply to
the facts in the present case.
38 94.2003Cri.Apeal.doc
49. The learned Counsel submitted that, for all the
aforesaid reasons, no reliance can be placed on the evidence
brought on record by the prosecution in the form of the dying
declaration of the deceased at Exh.42, which is shrouded with all
serious doubts.
50. Various objections noted as above raised by
Shri Chatterji, learned Counsel appearing for the accused, in
regard to the dying declaration at Exh.42 deserve serious
consideration since the learned trial Judge has based the
conviction of the accused mainly on the basis of the said dying
declaration.
51. There can be no dispute that, dying declaration can
be the sole basis for conviction, however such a dying
declaration has to be proved to be wholly reliable, voluntary and
truthful and further that, the maker thereof must be in a fit
medical condition to make it. It is not in dispute that, the dying
declaration at Exh.42 does not bear any endorsement thereon by
the Medical Officer as about the fitness of deceased Sangita to
give her statement. Relying on the Judgment of the Hon'ble
Apex Court in the case of Laxman Vs. State of Maharashtra
(cited supra) though it was sought to be canvassed by the
learned APP that, merely because an endorsement was made by
39 94.2003Cri.Apeal.doc
the Medical Officer not on the declaration, but on the application
would not render the dying declaration suspicious in any manner,
the law laid down in the aforesaid Judgment may not apply to
the facts of the present case in view of the fact that, in the
instant matter PW-5 Ashok Bhor in his evidence has not stated
that, he himself had ascertained the fitness of deceased Sangita
to give her statement before recording her statement. What has
been stated by PW-5 Ashok Bhor in his evidence is the fact that,
"I had not ascertained myself about the condition of said patient
as to whether she was in a position to give her statement. I had
recorded the statement because doctor had certified that, she
was in a position to give statement." It is not in dispute that,
the doctor who has allegedly certified deceased Sangita to be fit
for giving her statement, has not been examined by the
prosecution. Even the name of the said Medical Officer/ Doctor
has nowhere been disclosed in the entire prosecution evidence.
52. In fact, the question arises as to why PW-5 Ashok
Bhor did not issue the request letter to the concern Medical
Officer in the Civil Hospital to certify whether deceased Sangita
was in a fit condition to give her statement, before actually
recording her statement. It is the normal practice that, when
the declarant is in the hospital, it is the duty of the person
recording the declaration to record the statement in presence of
40 94.2003Cri.Apeal.doc
the doctor and after being certified by the said doctor that, the
declarant was in a fit state of body and mind to make the
declaration. Besides, the person who records the dying
declaration must satisfy himself that, the dying man/woman is
making a conscious and voluntary statement and that his/ her
understanding was normal. PW-5 Ashok Bhor has not provided
any explanation as to why he himself did not issue the request
letter to the concern Medical Officer. Had the said doctor been
examined as a prosecution witness, no further question would
have arisen. Since the said doctor has not been examined and as
has been deposed by PW-5 Ashok Bhor, he himself had also not
ascertained the fitness of deceased Sangita to give her
statement, serious doubts are raised whether deceased Sangita
was really in a fit condition to give her statement at Exh.42,
when the same was recorded by PW-5 Ashok Bhor.
53. Further, the suo-motu explanation given by PW-5
Ashok Bhor for not obtaining the fitness of deceased Sangita by
the Medical Officer on the dying declaration itself has created
serious doubts as well as confusion. According to PW-5 Ashok
Bhor, he recorded the statement only after obtaining the fitness
of deceased Sangita, but the mistake he committed was that, he
wrongly obtained the certification on the requisition issued to the
Medical Officer by the police. It is thus evident that, PW-5 Ashok
41 94.2003Cri.Apeal.doc
Bhor did not forget to obtain the certification as deposed by him
in his testimony before the Court, but he committed the mistake.
The question is when did PW-5 Ashok Bhor realized that, he has
forgotten or committed mistake in not obtaining the certification
on the dying declaration; whether before recording of the
statement or while recording the same or after recording was
completed. In all these contingencies, PW-5 Ashok Bhor could
have once again obtained the certification from the concerned
Medical Officer on the dying declaration, even though earlier he
had obtained the same on police requisition. Why such course
was not adopted by him, has not at all been explained by PW-5
Ashok Bhor.
54. After having considered the facts as aforesaid, the
doubt as has been raised on behalf of the accused that, the
certification of deceased Sangita to give her statement as is
existing on record at Exh.41 was not obtained before recording
of the statement at Exh.42 and was not obtained by PW-5 Ashok
Bhor, is difficult to be ruled out. The submission made by Shri
Chatterji, learned Counsel appearing for accused that, the
certification at Exh.41 was obtained by the PSI, who recorded
the statement-cum-complaint of deceased Sangita, on the basis
of which, the offence was registered against the accused treating
the said complaint as FIR, does not appear improbable.
42 94.2003Cri.Apeal.doc
55. It is the requirement of law and also the established
practice that, the dying declaration should be read over and
explained to the declarant and declarant should admit the same
to be correct, then there should be an endorsement to that
effect on the dying declaration by the person, who recorded it.
The dying declaration at Exh.42 nowhere bears any such
endorsement by PW-5 Ashok Bhor, who is stated to have
recorded the said dying declaration, to the effect that, he had
read over the said dying declaration to deceased Sangita and
that, deceased Sangita had admitted the same to be correct.
56. It is also rule of prudence that, after recording the
dying declaration and reading over the same to the declarant
and making the endorsement in that regard as mentioned in the
para above, the person who records it has to obtain the
signature or the thumb impression of the declarant, as the case
may be, below the said dying declaration and attest the said
signature or the thumb impression to be of the declarant by
making specific endorsement in that regard. Perusal of the
dying declaration at Exh.42 demonstrates that, the thumb
impression alleged to be of deceased Sangita below the said
declaration has not been attested by anyone including PW-5
Ashok Bhor, who is stated to have recorded the same.
43 94.2003Cri.Apeal.doc
57. It is further revealed that, there is no signature of
PW-5 Ashok Bhor at the bottom of the declaration at Exh.42 or
at the side of the alleged thumb impression of deceased Sangita.
Ordinarily, the person, who records the dying declaration, is
expected to sign the said declaration at its bottom and
preferably at the side of the signature or the thumb impression
as the case may be of the declarant. In the dying declaration at
Exh.42, PW-5 Ashok Bhor has put his signature in the side
margin of the said document and that too not at the bottom
portion, but on the middle portion. It is further noticed that,
though the entire other contents of the dying declaration at
Exh.42 are written or scribed in blue ink, the signature of PW-5
Ashok Bhor is curiously in black ink. As deposed by PW-5 Ashok
Bhor, he himself had written down the statement/declaration of
deceased Sangita in his own hand writing and had put his
signature thereafter.
58. From the fact that, the entire dying declaration
recorded at Exh.42 by PW-5 Ashok Bhor when is in blue ink,
signature of PW-5 thereon is in black ink, the doubt expressed
by the defence that, the dying declaration at Exh.42 was not
signed by PW-5 Ashok Bhor immediately after it was recorded by
him, but was signed at some later point of time, cannot be said
44 94.2003Cri.Apeal.doc
to be improbable. This is an additional circumstance raising
question mark about the genuineness of the dying declaration at
Exh.42.
59. The objections raised by Shri Chatterji, learned
Counsel for the accused, as about the format of the dying
declaration at Exh.42 also cannot be said to be unreasonable. It
is true that, the said format contains the leading questions.
Question no.10, which reads as "rqEgkyk dks.kh isVoys fdaok tkGys?**
(who ignited or set you on fire?) is undoubtedly presumptive. It
presumes that, the person, whose declaration is to be recorded,
has been burnt or set on fire by someone else meaning thereby
that, it is the case of homicide. Question no.12, which reads as
"rqEgkyk tkGqu ?ks.;kps @ tkG.;kps dkj.k dk;?** (why for you burnt
yourself/ Why for you were burnt ?) also presumes that, the
person, whose statement has to be recorded in the said
proforma, is either set on fire by somebody or has himself set on
fire as an attempt of suicide. Thus, the possibility of the person
receiving burn injuries by an accident is kept out of
consideration. We are afraid to what extent it would be safe to
rely upon the dying declaration recorded in such a printed
proforma.
60. In the dying declaration recorded at Exh.42,
deceased Sangita has admittedly not disclosed that, on earlier
45 94.2003Cri.Apeal.doc
day i.e. 07.12.1998 also, her dying declaration has been
recorded and that, the facts stated by her in the said dying
declaration that, she got burnt because of the bursting of stove
and further that, she does not have any complaint against
anybody, were stated by her under the pressure of her husband
and mother-in-law since they had threatened her with her life, if
she does not give such a statement.
61. In the case of Suresh Vishwanath Jadhav Vs. State of
Maharashtra (cited supra), which was relied upon by the learned
APP, the Division Bench of this Court relied upon the second
dying declaration of the deceased making out a case of homicide
though there was first dying declaration on record, wherein the
deceased had stated that, she caught fire due to bursting of
stove for the reason that, in her second dying declaration the
deceased provided a reason for not implicating the name of her
husband in the first dying declaration. The ratio laid down in the
aforesaid Judgment, therefore, may not apply to the facts of the
present case.
62. After having considered the discrepancies as above,
we have no hesitation in our mind in observing that, the dying
declaration at Exh.42 was impregnated with number of
suspicious circumstances, which create doubts regarding the
46 94.2003Cri.Apeal.doc
genuineness of the said dying declaration. Such a dying
declaration can hardly be sufficient as an unimpeachable
document and according to us, it was quite unsafe to base the
conviction of the accused on the basis of such evidence.
63. In the instant case, the version of homicide set up by
the prosecution as well as the version of accident set up by the
accused, both appear to be highly improbable and do not inspire
confidence to believe either version. In this state of things,
when two incredible versions confront us, we have to give
benefit of doubt to the accused and it would be unsafe to sustain
the conviction. The contradictions in the two dying declarations
coupled with the other circumstances on record, leave us with no
option but to attach little weight to these dying declarations.
None of the dying declaration inspire confidence in its
truthfulness and correctness so as to rely upon it. The
conviction of the accused, based on such evidence, cannot be
sustained.
64. Before parting with the Judgment, we are
constrained to observe that, the manner in which the instant
case was tried before the trial Court was highly objectionable.
The prosecution did not examine any of the doctors, who were
stated to have certified deceased Sangita to be fit for giving her
statements, at Exh.55 and Exh.42. More worrying factor is that,
47 94.2003Cri.Apeal.doc
in such a serious matter, the Investigating Officer did not enter
into the witness box. One Ramesh Kale, who was stated to have
made an attempt of extinguish the fire around deceased Sangita
and who was stated to have reached Sangita in the hospital, was
an important witness who could have thrown light on the
incident as it had occurred. The prosecution has not examined
him. In absence of any corroboration to the facts as were
deposed by PW-2 Maruti Dagadu Nikam, the father of deceased,
it would have been very unsafe to hold the accused persons
guilty for the offences, with which they were charged. In the
circumstances, we reiterate that, the only option before us is to
acquit the accused by giving them the benefit of doubt. Hence,
the following order.
ORDER
i) The Judgment and order dated 12.12.2002 passed by
First Ad-hoc Additional Sessions Judge, Ahmednagar in Sessions
Case No.23 of 1999 is quashed and set aside.
ii) The appellants namely Prakash s/o Bhausaheb Kale
and Narmadabai w/o Bhausaheb Kale are acquitted of all the
charges levelled against them.
iii) The bail bonds of the appellants - accused stand
cancelled.
48 94.2003Cri.Apeal.doc
iv) The fine amount, if any, paid by the appellants -
accused be refunded to them.
v) The Criminal Appeal thus stands allowed.
[ P.R. BORA ] [ SUNIL P. DESHMUKH ]
JUDGE JUDGE
ggpunde.
