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2001 DIGILAW 161 (BOM)

Guru M. Gawade v. State

2001-02-27

D.D.SINHA, D.G.DESHPANDE

body2001
JUDGMENT D.G. Deshpande, J. -Heard Senior Advocate Mr. Dessai for the appellant and Mr. Lawande, the Public Prosecutor for the State. This is an appeal by the accused against his conviction under Section 302 I.P.C. by which he is sentenced to imprisonment for life by the Addl. Sessions Judge. Panaji by his judgment dated 31-1-2000. The prosecution case was that on 6-3-1999 the accused under the influence of liquor had a quarrel with his wife Gulabi Gawade. He then poured kerosene on her person and with the help of paper lighted on the gas stove and set her on fire. She sustained 59% burn injuries and died at the Goa Medical College Hospital after six days i.e. on 123-1999. 2. The prosecution examined in all 18 witnesses including the Medical Officer arid also the Deputy Collector who had recorded dying declaration. The Doctor who examined the accused for the bum injuries on his hand was also examined by the prosecution. Admittedly there was no eye witness supporting the prosecution case. The prosecution examined one witness PW. 3 Vishnu H. Gawade as an eye witness, but he turned hostile and did not support the prosecution case. The conviction was mainly based on the dying declaration recorded by the Deputy Collector, who also was the Sub-Divisional Magistrate. 3. It is this dying declaration that is sought to be assailed by the Counsel for the accused before us. According to him, there are glaring irregularities in the recording of the dying declaration and, therefore, the dying declaration was liable to be rejected. Secondly, he contended that the two witnesses who were examined by the prosecution, had deposed that the deceased immediately after the incident had narrated to them that she caught fire due to bursting of stove. According to Mr. Dessai, these two witnesses were not declared hostile and therefore, their evidence has to be accepted by the prosecution. He also contended that if the evidence of dying declaration is rejected and these two witnesses are believed then nothing remains in the prosecution case for maintaining the conviction of the accused. 4. On the other hand Mr. According to Mr. Dessai, these two witnesses were not declared hostile and therefore, their evidence has to be accepted by the prosecution. He also contended that if the evidence of dying declaration is rejected and these two witnesses are believed then nothing remains in the prosecution case for maintaining the conviction of the accused. 4. On the other hand Mr. Lawande contended that the dying declaration is recorded as required by law; that the Doctor who examined the victim Gulabi certified her to be fit to give dying declaration; that there was nothing unnatural in the dying declaration and even though the two witnesses had deposed that Gulabi had told them that she caught fire because of bursting of stove, the panchanama has disclosed that the stove was intact and therefore, this statement was obviously wrong and, therefore, no reliance could be placed on the evidence of these two witnesses. Mr. Lawande also pointed out that the theory put forth by the accused that he tried to extinguish the fire, is liable to be out rightly rejected because the accused suffered very minor injuries, that too only on one hand and on the backside of the hand. A man extinguishing fire according to Mr. Lawande, cannot use only one hand and the very fact that the injury was only to one hand supported the prosecution case that it is he who poured kerosene and set his wife ablaze. 5. We have given anxious consideration to the submissions made by both the Counsel. The hurt certificate is on record at page 27 of the paper book, which is at Exhibit Pw. 2/ A and therein what is recorded by the Doctor after examining the accused is the burns on the right hand and upper arm and those burns are on the backside of the hand, i.e. backside of the palm. It is true-that the nature of the injury, its percentage and location falsify the defence of the accused that he extinguished the fire. Fire-cannot be extinguished by one hand and, if at all two hands are used while extinguishing fire of a person or fire caused to a person, then front portion of both the hands. I.e. palm and finger must receive injuries. Admittedly and obviously this hurt certificate which is pressed into service by the accused, does not help him, but, it falsifies his defence. 6. I.e. palm and finger must receive injuries. Admittedly and obviously this hurt certificate which is pressed into service by the accused, does not help him, but, it falsifies his defence. 6. However, the crucial question is as to what is the nature of evidence tendered by the prosecution for proving the guilt of the accused. Admittedly, the most important piece of evidence relied upon by the prosecution is the dying declaration, which was recorded by PW 8, who, at the relevant time, was working as Deputy Collector and Sub-Divisional Magistrate, Fonda. He has stated that as per the request of the police he went to the Goa Medical College. Hospital, saw the patient asked the Doctor whether the patient was in a position to give a statement and when the Doctor replied in the affirmative he recorded her statement as per her say. The statement was recorded in his own handwriting and during that time Dr. Karmali was present throughout. He produced and proved the statement Exhibit PW. 8/B. 7. Mr. Dessai raised a number of objections upon this statement. Firstly, according to him admittedly deceased Gulabi was an illiterate lady or at any rate nothing was brought on record to show that she could understand English language in which the statement was recorded. Therefore, according to him the dying declaration is not recorded in the language of the victim. Secondly, the dying declaration does not disclose that the questions were put to the victim in Marathi or in Konkani; that she understood those questions; that she gave reply in Marathi or in Konkani and then the Magistrate translated her answers in English. According to him, the dying declaration has to be faithful reproduction of the events. Thirdly, according to Mr. Dessai, as per the settled law, it was obligatory on the part of the prosecution to prove that the Magistrate who recorded the statement of the victim before recording the statement, got verified from the Doctor that the patient was in a fit condition to give statement; that the Doctor was present throughout the recording of the statement and that the Doctor certified about the fitness of the victim in the dying declaration itself. According to Mr. According to Mr. Dessai, the Doctor has not only not certified that the dying declaration was taken in his presence, but the Doctor has also not certified that he had examined the victim at the beginning of the recording of the statement and at the end; that during all this period the victim was fit to give statement. Fourthly, according to Mr. Dessai, this declaration was not recorded in questions and answers form but in the form of narration and. since all these objections go to the Toot of the matter the very credibility of the dying declaration is suspicious and the same was liable to be rejected. 8. On the other hand. Mr. Lawande submitted that Dr. Karmali was examined by the prosecution and. he had stated that he was present throughout the recording of statement; that he had examined the patient before and after recording of the dying declaration and he found Gulabi to be fit to make statement. According to Mr. Lawande this evidence of Dr. Karmali is sufficient compliance to the mai1datory requirement. He also stated that when the dying declaration itself showed that it was read over and explained in Konkani then it was required to be accepted that the dying declaration was so read over and explained in Konkani. As regards recording of the dying declaration only in the languages of the witness i.e. Konkani or Marathi, Mr. Lawande contended that unless mala-fides were alleged against the Magistrate. PW. 8, it could not be said that he had any oblique reasons for not recording the dying declaration in the language of the witness. At any rate, this could not be a ground to reject the important piece of evidence in the form of a dying declaration. 9. We have given anxious consideration to the submissions made by both the Advocates and in our opinion not recording the statement of the victim in the language of the victim or not recording the statement of the victim in questions and answers form will not materially affect the prosecution case, but non-examination of the victim by the Doctor before recording of the dying declaration and absence of a certificate by the Doctor that the patient was fit to give statement, is an illegality that goes to the root of the matter and which cannot be condoned as procedural lapse and. therefore, the dying declaration is liable to be rejected. The evidence of Doctor, on oath that he was present; that he examined the patient before recording of the dying declaration or that he examined the victim at the beginning and she found to be fit, is of no consequence, because the dying declaration does not support the evidence. What is required by law is that the dying declaration itself should contain the certificate of the Doctor regarding fitness of the victim before recording of the statement starts and also at the time of concluding the said dying declaration. What is not there in the certificate cannot be permitted to be proved by oral evidence of the Doctor. On this ground alone, the dying declaration is liable to be rejected. 10. The most important thing that affects the prosecution case, is the evidence of witness Pw. 6 Satyawan Gawade, who has stated that on 6-3-1999, after closing his shop he went home by his car, one Ratnakar Gawade, cousin of the accused came to his house and informed him that the wife of the accused had caught fire. Then the victim Gulabi was taken to his house and in his car, she was taken to Priolkar Nursing Home at Mangueshi. The Doctor examined victim Gulabi, who revealed on questioning that she caught fire while she was cooking food. There was no cross examination of this witness by the accused nor by the prosecution. Therefore, the consequence is that an important witness of the prosecution who had taken the victim to the hospital, out of a gesture of humanity, given evidence of facts which creates doubt about the prosecution case. 11. Similar is the case with the evidence of PW. II, Virnal Gaude. She is related to the accused. The accused is the cousin of her husband, Ratnakar. About the incident, she had stated that on 6th of the particular year and the month, she was in her house when Mali, sister of the accused came to her house and then she heard some noise in the house of the accused. She went to the house of the accused and she saw that Gulabi was burning. She was sitting on the ground. The clothes which were burnt, were removed from her body and then Gulabi was taken to the Doctor. She went to the house of the accused and she saw that Gulabi was burning. She was sitting on the ground. The clothes which were burnt, were removed from her body and then Gulabi was taken to the Doctor. She asked as to what had happened and Gulabi told her that when she was cooking, her saree caught fire. The witness Vimal accompanied Gulabi to the Doctor and she also stated before the Doctor that when she was cooking, her saree caught fire. There is also no cross examination of this witness by and on behalf of the accused nor any cross examination by the prosecution in an attempt to declare this witness hostile. It will, therefore, be clear that these two witnesses PW. 6 and PW. 11 have proved the oral dying declaration of Gulabi which was made by her immediately after she was found burning. These witnesses were not declared hostile, might be because their statements to the police were of the similar nature. But whatever may be the cause, due to the carelessness or negligence on the part of the Prosecutor who conducted the case, the effect of a substantive piece of evidence given by the witnesses on oath in the Court, cannot be disregarded, particularly when the witness is a witness for the prosecution and no motives are -attributed to him or there is nothing to show that he is giving false evidence. 12. It is true that the prosecution is not supposed to suppress truth from the Court and adduce the evidence that leads to the conviction, but, if any discretion in that regard is there to the prosecution and the same is exercised in a manner which brings the evidence of these two witnesses on record then this evidence has to be taken into consideration irrespective of its consequences. Therefore, this evidence which is substantive piece of evidence of the witnesses to whom first or almost first narration was made by Gulabi coupled with the deficiencies and the irregularities in recording the dying declaration as referred to above create doubt about the prosecution. 13. It is true that the accused has not explained the injuries on his person. It is also true that the injuries on only one hand of the accused are highly suspicious and they show his direct involvement in the offence. 13. It is true that the accused has not explained the injuries on his person. It is also true that the injuries on only one hand of the accused are highly suspicious and they show his direct involvement in the offence. It is also true that as per the evidence on record the stove was not found to have burst and it was intact. However, all these circumstances cannot help the prosecution for proving the guilt of the accused beyond reasonable doubt. The two strong circumstances, namely the dying declaration because of its deficiency and irregularities is required to be rejected and the substantive evidence of those two witnesses has to be given due weightage. Therefore, even if the judgment of the trial Court is sound on other aspects the same is required to be upset and the benefit of doubt is required to be given to the accused for the aforesaid reasons. 14. In the result the appeal is allowed. The conviction of the accused is set aside and he is acquitted of the offence for which he was charged. He should be immediately set at liberty if not required in any other case. Appeal allowed.