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2011 DIGILAW 578 (BOM)

Ashok Pandurang Jadhav v. State of Maharashtra

2011-05-06

ABHAY M.THIPSAY, B.H.MARLAPALLE

body2011
Judgment :- A.M. THIPSAY, J. 1. This Appeal is directed against the Judgment and Order passed by the Additional Sessions Judge, Palghar in Sessions Case No.143 of 2002, convicting the Appellant, who was the sole accused in the said case, of an offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs.1,000/- with a default sentence of R.I. for three months. The prosecution case before the trial Court was as follows : The Appellant, (hereinafter referred to as “the accused”), was the second husband of Sangita Jadhav, the deceased. On 12th June, 2002, at about 10:30 p.m., the accused came home drunk. Sangita, at that time, remarked that the accused was not doing any work, and that he would only consume liquor and come home, on which the accused became angry. He, therefore, picked up a kerosene can, which was in the house, poured the kerosene contained therein on the body of the Sangita and set her on fire by a lamp which was burning in the house. Sangita caught fire. The accused tried to extinguish the fire. Neighbours assembled there. Sangita was taken to the Dispensary run by Vasai Nagar Parishad, by the accused and the neighbours. Sangita had sustained superficial to deep burn injuries almost all over her body. The Police came to know about the incident (it is not clear as to how they learnt about it). Jagannath Mane (PW5) who was attached to Vasai Police Station as Head Constable at the material time, was asked by ASI Mhaskar, to record the statement of the victim and Jagannath Mane (PW5), therefore, proceeded to the said hospital. Dr. Praful Vaidya (PW1), who was on duty at that time, was contacted by Jagannath Mane (PW5). After ascertaining from him that Sangita was in a position to give statement, Jagannath Mane (PW5) recorded her statement (Exhibit19) in which she stated that she had a quarrel with the accused over his not doing any work and consuming liquor, and that, therefore the accused became angry and that he poured kerosene contained in the small can in the house on her person and set her on fire by a lamp that was burning in the house. This statement was treated as the First Information Report. Mr. This statement was treated as the First Information Report. Mr. Mahendra Lad, Special Executive Officer, (PW4), was called to the hospital for recording the statement of Sangita. Mahendra Lad (PW4) also recorded her statement (Exhibit30) in which Sangitabai stated that she had been set on fire by the accused. Further investigation into the matter was carried out by Vijaykant, API, (PW8) attached to Vasai Police Station at the material time. Sangita was, later on, shifted to Bhagwati Hospital at Borivali where she succumbed to the injuries on 14th June, 2002. Postmortem examination on the dead body was performed and the cause of death was opined to be as “shock following 95% superficial to deep thermal burns-unnatural”. Spot panchanama was drawn on 13th June, 2002 and in the presence of Panchas Suresh Kolhe (PW6) and one Ganesh Wayda, a kerosene can, a lamp and some burnt quilt (xksnMh) were seized under the Panchanama (Exhibit37). The accused was arrested under a panchanama (Exhibit39) with Jatin Tare (PW7) and one Yusuf Memon, acting as Panchas. On completion of investigation, a charge sheet was filed against the accused. The accused pleaded not guilty to the charge of an offence punishable under Section 302 of the IPC, which came to be framed against him and claimed to be tried. 2. The prosecution examined eight witnesses before the trial Court, all of whom, except Vijay (PW2) and Vanita (PW3), son and daughter of deceased Sangita, respectively, have been referred to above. Vijay (PW2) claims to be an eye witness to the incident, whereas Vanita claims to be a witness in respect of the Dying Declaration made by Sangita, by gestures, indicating that the accused had poured kerosene over her. 3. The Cause of Death Certificate (Exhibit46) issued by the Chief Medical Officer, Cooper Hospital and the notes of the post mortem examination (Exhibit47) were admitted in evidence, by consent. 4. The defence of the accused, as reflected from the cross-examination of the prosecution witnesses and the answers given by him to the questions put to him during his examination under Section 313 of the Code of Criminal Procedure, is of denial. The accused admits the relationship between him and Sangita. According to him, on the day of the incident, he came home late in the night; and that, Sangita poured kerosene on her person and set herself on fire by taking out her clothes. The accused admits the relationship between him and Sangita. According to him, on the day of the incident, he came home late in the night; and that, Sangita poured kerosene on her person and set herself on fire by taking out her clothes. According to the accused, he tried to extinguish the fire and took Sangita to the hospital at Vasai. Thus, the case of the accused is that Sangita had herself set her on fire. 5. After considering the evidence adduced before it, the trial Court held that the case against the accused was proved. The trial Court, in that regard, mainly relied on the Dying Declarations made by Sangita before Mahendra Lad (PW4) and Jagannath Mane (PW5). The trial Court held that these two witnesses had no motive to falsely implicate the accused and that the statements made by Sangita should be believed and accepted as true. 6. We have heard Ms. Ameeta Kuttikrishnan, the learned Advocate, who was appointed to defend the accused under the free legal aid scheme. We have also heard Dr. Shaikh, the learned APP, for the respondentState of Maharashtra. We have gone through the entire evidence adduced before the trial Court. We have gone through the impugned judgment and order. 7. That Sangita died an unnatural death due to burn injuries is not in dispute. Even otherwise, there is sufficient evidence in that regard. The notes of the post mortem examination (Exhibit47) show that Sangita had sustained 95% superficial to deep thermal burns. The cause of death has been opined to be ‘shock due to deep thermal burns’. Dr. Praful Vaidya (PW1), who had examined Sangita immediately after her admission in the hospital, stated about the condition of Sangita and the certificate in respect of the injuries which Sangita had sustained, which had been issued by the said witness, has been tendered in evidence (Exhibit22). It mentions that Sangita had sustained burns all over the body except right half of the face (98%). Even the accused does not dispute the fact that Sangita had caught fire and was taken to the Nagar Parishad Hospital at Vasai. Thus, the fact of sustaining burn injuries by Sangita and that her death was caused as a result of the said injuries, is not in dispute at all. 8. Even the accused does not dispute the fact that Sangita had caught fire and was taken to the Nagar Parishad Hospital at Vasai. Thus, the fact of sustaining burn injuries by Sangita and that her death was caused as a result of the said injuries, is not in dispute at all. 8. The only question is whether Sangita was set on fire by the accused, or whether she herself had set her on fire. The possibility of the fire having been caught in some other manner, i.e. accidentally, need not be considered in as much as that is not the case of anyone. 9. Since the case of the prosecution is based on the dying declarations made by Sangita to Mahendra Lad (PW4), the Special Executive Officer, and to Jagannath Mane (PW5), Head Constable of Police, the evidence of these witnesses needs to be carefully considered. The oral dying declaration made to Mahendra Lad (PW4) was reduced to writing by him and that record has been tendered in evidence (Exhibit30). Similarly, the oral dying declaration made by Sangita to Jagannath Mane (PW5) was also reduced to writing by him and the record thereof has been tendered in evidence (Exhibit19). Dr. Praful Vaidya (PW1) is the Medical Officer in whose presence both the dying declarations were recorded. Therefore, his evidence also requires to be subjected to be a thorough scrutiny. 10. Mahendra Lad (PW4) has stated in his evidence, that on 13th June, 2002, he was called at the Nagar Parishad Hospital at Vasai, by the Police for recording the statement of Sangita Jadhav. That when he went there, the Medical Officer was present with Head Constable Jagannath Mane (PW5). According to Mahendra Lad (PW4), Sangitabai was in a position to speak and that he questioned her. Mahendra Lad (PW4) does state that Sangita, on being asked by him, gave her name and address and when she was asked about the burns, she told Mahendra Lad (PW4) that her husband had poured kerosene on her person and thereafter set her on fire by using a lamp. Mahendra Lad (PW4) also stated that Sangita told him the cause of setting her on fire as ‘her objection to the behaviour of her husband i.e. the accused’. Mahendra Lad (PW4) then recorded her statement and obtained her thumb impression thereon. He also signed the record made by him (Exhibit30). Mahendra Lad (PW4) also stated that Sangita told him the cause of setting her on fire as ‘her objection to the behaviour of her husband i.e. the accused’. Mahendra Lad (PW4) then recorded her statement and obtained her thumb impression thereon. He also signed the record made by him (Exhibit30). The document at Exhibit30 corroborates the oral evidence of Mahendra Lad (PW4) and, indeed, shows that Sangita did state that the accused had poured kerosene over her person and had set her ablaze by a lamp. In the crossexamination of this witness, it is revealed that even before he recorded the statement of Sangita, Police had already told him that she had been set on fire by her husband. Mahendra Lad (PW4) also stated, that prior to asking questions to Sangita, he had made certain enquiries with her son and daughter,who were present there. Mahendra Lad (PW4) has also stated that the children of Sangita were present when he questioned Sangita. His evidence shows that when the statement of Sangita was recorded, Jagannath Mane (PW5), children of Sangita (PW2 & 3) and the Medical Officer (PW1) were present. 11. The evidence of Jagannath Mane (PW5) shows that on reaching the Nagar Parishad Hospital at Vasai, he saw that Sangita was having extensive burns. According to him, he made a report to the Medical Officer (PW1), asking him whether the patient was in a position to make a statement and that the Medical Officer (PW1) issued a certificate stating that the victim was in a position to give statement. Jagannath Mane (PW5) then recorded the statement of Sangita. He did not specifically state in his evidence as to what Sangita stated before him but has simply said that he recorded her statement. The record of the statement (Exhibit19) has been tendered in evidence. He has stated that the same bears the thumb impression of Sangita and the endorsement of the Medical Officer (PW1). In the cross-examination, he has stated that he had personally gone to Shri Mahendra Lad (PW4) to call him. According to him, first he recorded the statement of Sangita and thereafter Mahendra Lad (PW4) recorded her statement. He has stated that when he reached the Nagar Parishad Hospital at Vasai, the children of the victim, the accused and some other relatives were present. According to him, first he recorded the statement of Sangita and thereafter Mahendra Lad (PW4) recorded her statement. He has stated that when he reached the Nagar Parishad Hospital at Vasai, the children of the victim, the accused and some other relatives were present. He denied that either he or Mahendra Lad (PW4) made any enquiry with the children of the victim. It was suggested to him, that he as well as Mahendra Lad (PW4) were told by the Medical Officer (PW1) that Sangita was in an unconscious state and that therefore he and Mahendra Lad (PW4) made enquiries with Sangita’s children and relatives, which suggestion was denied. It was suggested to him that false statements, purporting to be of Sangita, were prepared on the basis of the information given by her children and relatives; that the fingers of Sangita had been totally burned and, therefore, no thumb impression of Sangita was obtained on any document, but these suggestions have been denied by him. 12. Dr. Praful Vaidya (PW1) has stated that when he examined Sangita, he observed that she was well oriented and her general condition was moderate. According to him, she was conscious and, therefore, he issued a certificate to that effect (Exhibit18). According to him, thereafter, the Police recorded the statement of Sangita in his presence (Exhibit19). He has stated, that Sangita’s statement was recorded as per her say and her thumb impression was obtained thereon. According to him, he has ‘counter signed’ the said statement (Exhibit19). He has identified the statement (Exhibit19) as the same, when it was shown to him in Court. In the cross-examination, he has admitted that on Sangita’s statement (Exhibit19), there is no specific mention that it was recorded in his presence. He has also admitted, that the person who had sustained burn injuries to the extent Sangita had sustained, would be in deep pain and that such person could not remain in a conscious state for a long time. He has denied the suggestion, that he had issued certificate regarding consciousness of Sangita only to help the Police. 13. Before proceeding to discuss the reliability of the evidence with respect to the said dying declarations, the evidence of other witnesses may be referred to. Vijay Kambli (PW2), son of the deceased, was projected by the prosecution as an eye witness. 13. Before proceeding to discuss the reliability of the evidence with respect to the said dying declarations, the evidence of other witnesses may be referred to. Vijay Kambli (PW2), son of the deceased, was projected by the prosecution as an eye witness. His version in the examination-in-chief is that on the day of incident, a quarrel had taken place between Sangita and the accused in the night. According to him, thereafter, the accused went to drink liquor and Sangita was sleeping in front of the door. The version of this witness is that when the accused came back, he poured kerosene on the person of Sangita and set her on fire by a lamp. That Sangita then ran towards the road and the accused followed her with a bed sheet, for the purpose of covering her with the same. He has stated that when the incident took place, he was taking dinner in inner room. In the cross-examination, however, it was revealed that he had not seen the incident at all. What he stated in the cross-examination is as follows:- “On the day of the incident at night time I have gone to Arun uncle to watch T.V. When I came in the front door after hearing the cries of my mother I saw that her second husband was keeping a blanket around her to estinguish the fire.” 14. Though the suggestion that he had not seen the incident of accused pouring kerosene over Sangita and setting her on fire has been denied by him, from his deposition reproduced above, it is clear that he had not seen the accused setting Sangita on fire and that he came on the scene subsequently. 15. Coming to the evidence of Vanita (PW3), it may be observed that she also claimed to be a witness to the dying declaration made by Sangita “by gestures”. Vanita (PW3) was not residing with Sangita and the accused, and she was residing somewhere else, where she was working. On learning about the incident, she came to the Nagar Parishad Hospital at Vasai and saw Sangita. According to her, when she questioned Sangita, Sangita told her, by gestures, that the accused was the perpetrator of the act and that he had caused injuries to her. In the cross-examination, she had admitted that Sangita was not in a position to speak. According to her, when she questioned Sangita, Sangita told her, by gestures, that the accused was the perpetrator of the act and that he had caused injuries to her. In the cross-examination, she had admitted that Sangita was not in a position to speak. It may be observed that the trial Court has doubted the version of Vanita (PW3) that Sangita told her, by gestures, that the accused had committed the crime. Thus, the dying declaration said to have been made by Sangita to Vanita (PW3), by gestures, has not been believed by the trial Court and rightly so, in our opinion. 16. Suresh Kolhe (PW6) is a Panch in respect of the spot-cum-seizure panchnama (Exhibit37), which was drawn on 13th June, 2002. In his evidence, he gave the description of the house of Sangita and the condition of the same as witnessed by him. He speaks of a burnt bed sheet and one burnt saree, small lamp and kerosene can found lying on the floor etc., and about the seizure of the same by the police, in his presence under a panchanama. His evidence shows that the floor was wet. 17. The evidence of Jatin Tare (PW7) merely shows that the accused was arrested on 13th June, 2002 at about 14:00 hrs. at the Police Station itself under a panchnama (Exhibit39). His evidence is not of much consequence. 18. The trial Court, in paragraph 10 of the impugned judgment, recorded that it would be necessary to state the principles on the basis of which evidence in the form of dying declaration is admitted in a criminal trial and proceeded to record those principles. It would be appropriate here to consider the evidentiary value of a dying declaration, as a piece of evidence. There is no dearth of reported judgments of the High Courts and of the Supreme Court of India dealing with the acceptability of a dying declaration or declarations in a given case and in the facts and circumstances of that particular case. The legal propositions which can be enunciated from these authoritative pronouncements are well known. The law on this subject has been very ably stated by the Supreme Court of India in the case of Khushal Rao Vs. State of Bombay, reported in AIR 1958 SC 22 . 19. In the case of Khushal Rao Vs. The legal propositions which can be enunciated from these authoritative pronouncements are well known. The law on this subject has been very ably stated by the Supreme Court of India in the case of Khushal Rao Vs. State of Bombay, reported in AIR 1958 SC 22 . 19. In the case of Khushal Rao Vs. State of Bombay (supra), a Full Bench of the Supreme Court of India, specifically dealt with the evidentiary value of dying declarations. Their Lordships of the Supreme Court referred to a previous decision of the Supreme Court reported in AIR 1953 SC 420 (E), wherein it was expressed that it was not safe to convict an accused merely on the evidence of dying declaration, without any corroboration. Their Lordships reproduced the observations appearing on page 423 of the said reported judgment as follows:- “It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration. It is in this light that the different dying declarations made by the deceased and sought to be proved in the case have to be considered.” 20. Their Lordships then observed as follows:- “We have, therefore, to examine the legal position whether it is settled law that a dying declaration by itself, can, in no circumstances, be the basis of a conviction.” 21. Their Lordships then observed as follows:- “We have, therefore, to examine the legal position whether it is settled law that a dying declaration by itself, can, in no circumstances, be the basis of a conviction.” 21. After extensively examining the provisions of Sec.32(1) of the Evidence Act and referring to various conflicting views with regard to the value of dying declaration as a piece of evidence expressed by different High Courts, Their Lordships laid down the following principles : “1) That it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; 2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; 3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; 4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; 5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character; and 6) that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.” Their Lordships further observed that : “Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But, once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case.” 22. It would be appropriate here to remind oneself that generally, there are two issues with respect to a dying declaration. The first one would be, whether the declaration was actually made. Naturally, this would be assessed on the basis of the evidence of the witnesses, who claim that such declaration was made and witnessed by them. There would be a question of accuracy of the record of such declaration, if made or maintained by such witnesses. If the evidence in that regard is satisfactory, the Court would come to a conclusion that a particular statement was, indeed, made by the deceased; but that the statement was, indeed, made, is not the end of the matter. The Court thereafter would be required to decide whether such statement made by the deceased was true. In other words, the fact of having made the statement and the truthfulness of the said statement are both required to be established before a declaration is termed as reliable. Now, for ascertaining the truthfulness of the statement of a dying person, the parameters, which are applied to the witnesses while judging reliability of their evidence, must be applied. The reliability of a version of a witness would depend on several factors including the opportunity available to a witness to know, or observe, the facts correctly and his physical and mental condition at the time of making the statement in question. 23. Dr. The reliability of a version of a witness would depend on several factors including the opportunity available to a witness to know, or observe, the facts correctly and his physical and mental condition at the time of making the statement in question. 23. Dr. Praful Vaidya (PW1) has not made any endorsement to the effect that the victim was conscious and was in a fit mental state to make a statement, either on Exhibit19 or Exhibit30. Exhibit19 merely contains the signature of Dr. Praful Vaidya (PW1) at the bottom of the document without any endorsement or remark. No date, or time, of putting the signature has been mentioned. Same is the case with respect to the document at Exhibit30, which merely contains the signature of Dr. Praful Vaidya (PW1) in the margin, without any endorsement and without any date or time of making the signature. Undoubtedly, Dr. Praful Vaidya (PW1) has stated that Sangita was in a condition to give statement and was conscious and has sought to support the same from the certificate (Exhibit18) issued by him on 13th June, 2002. The said certificate (Exhibit18), though is said to be in response to a communication (Exhibit17) addressed to this witness by the Police, does not refer to the said communication. The certificate has been purportedly issued at 12:30 a.m. on 13th June, 2002. There does not seem to be any reason for giving a certificate about Sangita being conscious, oriented and in a state of giving statement separately, without making any endorsement to that effect on the dying declarations themselves. This is particularly so because Dr. Praful Vaidya (PW1) claims that the dying declaration at (Exhibit19) was recorded in his presence. If that was so, the absence of an endorsement, not only about the fitness of Sangita to make the statement but also about the fact that the statement was recorded in the presence of Dr. Praful Vaidya (PW1), is rather curious; and coupled with the other aspects which shall be discussed later, creates a doubt about the authenticity of this record and, consequently, about the truth of the claim that Sangita was conscious and in a fit condition to make the statement. 24. Praful Vaidya (PW1), is rather curious; and coupled with the other aspects which shall be discussed later, creates a doubt about the authenticity of this record and, consequently, about the truth of the claim that Sangita was conscious and in a fit condition to make the statement. 24. If the evidence of Mahendra Lad (PW4) and Jagannath Mane (PW5) is read, it is clear that the dying declaration (Exhibit19) recorded by Jagannath Mane (PW5) and the dying declaration (Exhibit30) recorded by Mahendra Lad (PW4) were in succession. First Jagannath Mane (PW5) recorded the dying declaration (Exhibit19) and, thereafter, Mahendra Lad (PW4) recorded the dying declaration (Exhibit30). Jagannath Mane’s (PW5) evidence shows that he had personally gone to Mahendra Lad (PW4) to call him. Mahendra Lad’s (PW4) evidence also shows that when the statement of Sangita (Exhibit30) was recorded by him, Jagannath Mane (PW5) was very much present. Interestingly, however, Dr. Praful Vaidya (PW1) does not speak at all about any dying declaration recorded by Mahendra Lad (PW4). According to him, the statement of Sangita was recorded by the Police in his presence and he does not speak about any other statement of Sangita recorded by anybody else in his presence. Now, Mahendra Lad (PW4)is categorical that when he recorded the statement, Constable Jagannath Mane (PW5), children of Sangita (PW2 & 3) and the Medical Officer (PW1) were present. That Dr. Praful Vaidya (PW1) should not speak about recording of two dying declarations by Sangita and should speak only about the dying declaration recorded by Jagannath Mane (PW5), in the circumstances, creates a doubt whether two dying declarations were, indeed, separately recorded and, further, whether Dr. Praful Vaidya (PW1) was, indeed, present during the recording of any such statement. It may be recalled that there is no endorsement on any of the statements that same was recorded in the presence of Dr. Praful Vaidya (PW1) and, further, that the certificate about Sangita being conscious and in a state of giving statement has been made not on any of the statements, but contains in a separate document. 25. Mahendra Lad’s (PW4) evidence also shows that the Police told him that Sangita was set on fire by her husband even before the statement of Sangita was recorded by him. 25. Mahendra Lad’s (PW4) evidence also shows that the Police told him that Sangita was set on fire by her husband even before the statement of Sangita was recorded by him. Mahendra Lad (PW4) also admits that he made certain enquiries with Sangita’s son and daughter, who were present there, before putting any questions to Sangita. Thus, when Mahendra Lad (PW4) started recording the statement of Sangita, he had already received information from the Police as well as from the children of Sangita to the effect that she had been set on fire by the accused. When such is the position, the possibility of the witness genuinely trying to ascertain from the victim as to what had happened becomes less. The possibility that the witness may tend to record some statement merely to ‘confirm’ what is already believed to be true, cannot be ruled out in such circumstances. 26. Sangita had sustained 95% burn injuries. This is clear from the notes of the post mortem examination (Exhibit47). According to Dr. Praful Vaidya (PW1), Sangita had sustained 98% burns. The diagram found in the medical certificate (Exhibit22) issued by Dr. Praful Vaidya (PW1) shows that except only less than half portion of the face and head, the rest of the body was burnt. That Sangita was conscious, well oriented and in a fit mental condition to make a rational statement in such circumstances needs to be carefully considered. This is particularly so because Vanita (PW3), who has stated about a dying declaration made to her by Sangita, by gestures, has further clearly admitted that Sangita was not in a position to speak. Thus, this must be accepted as true in as much as that is why the occasion for speaking about a dying declaration, by gestures, arose. It is true that Vanita had arrived on the scene later and after the dying declarations were said to have been recorded. That Sangita was not in a position to speak when Vanita came, does not conclusively establish that even earlier she could not speak, but the fact remains that in the totality of the circumstances; namely, the extent of injuries sustained by Sangita, the absence of any endorsement regarding her fitness made by Dr. Praful Vaidya (PW1) on any of the dying declarations and the fact that Dr. Praful Vaidya (PW1) on any of the dying declarations and the fact that Dr. Praful Vaidya (PW1) does not speak about two dying declarations being recorded at all, it is extremely doubtful whether a detailed statement of Sangita, as has been reflected from Exhibit19, was, indeed, recorded, and, at any rate, whether the Exhibit19 contains an accurate record of what Sangita stated. This doubt is strengthened because, though according to Mahendra Lad (PW4), children of Sangita (PW2 & 3) were present when the dying declaration was recorded, neither Vijay (PW2) nor Vanita (PW3) speaks anything about any dying declaration made by Sangita. On the contrary, the very fact that Vanita (PW3) speaks of a dying declaration allegedly made by Sangita to her, by gestures, indicates that no statement was orally made by Sangita and that no such statement was recorded. 27. The evaluation of the dying declaration would depend on the testimony of the persons before whom the declaration was made and the medical opinion, if any, available in evidence showing the physical or mental state of the declarant at the material time. The ability to speak is totally different from the ability to make a rational statement. Similarly, merely because a person who has sustained serious injuries is conscious, it cannot be presumed that such person is mentally fit to make a rational statement. When a belief is required to be formed that a person who has sustained 98% burn injuries was in a fit state of mind to make a rational statement, it would not be improper to expect specific medical evidence to that effect. Atleast the satisfaction of the person recording the statements, based on some questions put to the declarant, must be reflected from the evidence. The same is also wanting in the present case. 28. In the case of Mayur Panabhai Shah Vs. State of Gujarat, reported in AIR 1983 SC 66 , Their Lordships of the Supreme Court did not approve the observation made by a learned Single Judge of the Gujarat High Court to the effect that ‘our Courts have always taken the Doctors as witness of truth’. 28. In the case of Mayur Panabhai Shah Vs. State of Gujarat, reported in AIR 1983 SC 66 , Their Lordships of the Supreme Court did not approve the observation made by a learned Single Judge of the Gujarat High Court to the effect that ‘our Courts have always taken the Doctors as witness of truth’. The Supreme Court of India observed ‘even where a doctor has deposed in court, his evidence has got to be appreciated like the evidence of any other witness and there is no irrebuttable presumption that a doctor is always a witness of truth.’ In our opinion, considering the totality of the circumstances appearing in the evidence, there arises a reasonable doubt whether Sangita had, indeed, made the declarations, as are reflected in the documents Exhibit19 and Exhibit30. However, even if it is assumed that such statements were made by Sangita, it would be necessary to scrutinize and examine the object of finding out— like it does in case of testimony of any witnesses—whether it is true. 29. Like every other piece of evidence, the declarations made by the dying man ought to be subjected to scrutiny and cannot be accepted as true merely because it is proved that the dying man indeed made such statements. It may be recalled that one of the principles, which ought to be kept in mind in assessing the value of dying declaration as laid down by Their Lordships of the Supreme Court in the case of Khushal Rao (supra) is that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence. 30. It is well settled that the weight, which is to be attached to the testimony of a witness, depends, in a large measure, upon considerations, that is, if on the face of it, his evidence is so much in consonance with the probabilities and consistent with other evidence and generally so fits with the material details of the case of prosecution, as to carry conviction of truth to a prudent mind, it can be safely accepted. What is true with respect to evidence of witnesses is also true with respect to the statements made by a dying man. What is true with respect to evidence of witnesses is also true with respect to the statements made by a dying man. In fact, they deserve to be scrutinized more carefully as they cannot be tested on the anvil of the cross-examination. 31. The possible infirmities in a dying declaration can be one or more of the following : a) The declarant may not have been mentally fit to make the alleged declaration. b) The nature of the record made may have considerably detracted from the actual words uttered by the declarant. c) The declaration may have been lacking in circumstantial guarantee of its trustworthiness. d) The declaration may have been the result of suggestion or consultation. 32. A reference to the other circumstances, which are either undisputed, or satisfactorily proved may be useful, in the assessment of the trustworthiness of the dying declarations. The evidence shows that the incident took place in the house of Sangita. Considering the extent of burn injuries sustained by Sangita, it is apparent that kerosene was poured all over her body. When the case is not that Sangita had been held by somebody else or had been tied, it is difficult to see how she would remain quiet till the accused is able to pour kerosene all over her body and, thereafter, set her on fire. The reaction of a person, as soon as the person would realize, that kerosene is likely to be poured over that person’s body, would be to attempt to prevent the pouring of kerosene. Further, even thereafter, the victim would get the chance to escape or raise shouts, before the victim is actually set on fire by a lamp. The extent of injuries sustained by Sangita do not show any signs of resistance. Further, there is no evidence to show that there was any scuffle. There is no evidence, or even a claim that the belongings in the house, where the incident took place, had fallen or thrown away, indicating of a scuffle, fight or resistance. 33. Admittedly, the accused tried to extinguish the fire. Admittedly, he himself sustained burn injuries in the process. The accused, along with others, took Sangita to Nagar Parishad Hospital at Vasai. The evidence also shows that water was poured over Sangita and that the floor of the room, where the incident took place, had become wet. 34. 33. Admittedly, the accused tried to extinguish the fire. Admittedly, he himself sustained burn injuries in the process. The accused, along with others, took Sangita to Nagar Parishad Hospital at Vasai. The evidence also shows that water was poured over Sangita and that the floor of the room, where the incident took place, had become wet. 34. The dying declarations in this case are lacking any circumstantial guarantee of their trustworthiness, even if it is held that such statements were, indeed, made by Sangita. 35. It may be recalled that in his statement under Section 313 of the Code, the accused claimed that Sangita poured kerosene on her person and set herself on fire. Considering the absence of any signs of any resistance, the extent of burn injuries sustained by Sangita i.e. 98%, the conduct of the accused and the various infirmities in the prosecution evidence, it cannot be said that the possibility of Sangita having committed suicide is ruled out. It is well settled that the accused need not prove his assertions. It is sufficient if upon consideration of the evidence as a whole and in totality, his assertions are rendered plausible. 36. In our opinion, the prosecution evidence was insufficient to establish the charge against the accused beyond reasonable doubt. The possibility of Sangita having committed suicide, as claimed by the accused, cannot be ruled out and certainly, this assertion of the accused is quite plausible. 37. The conviction of the accused, as recorded by the learned Additional Sessions Judge, Palghar, is not in accordance with law. In our opinion, upon considering the evidence as a whole and the totality of the circumstances gathered from the evidence, there arises a reasonable doubt about the guilt of the accused. In our opinion, this was a case where the accused should have been acquitted. 38. We, therefore, allow the Appeal and set aside the impugned order of conviction and sentence passed by the trial Court. The accused shall stand acquitted. He be set at liberty forthwith. 39. Fine, if paid, be refunded to the accused.