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Bombay High Court · body

2014 DIGILAW 2425 (BOM)

Sunder Gounder v. State of Goa

2014-12-09

F.M.REIS, R.M.BORDE

body2014
Judgment R.M. Borde, J. 1. This is an appeal by the accused, taking exception to the Judgment and Order of conviction and sentence awarded by the Additional Sessions Judge, Mapusa in Sessions Case No.21/2009 on 18/10/2012, holding the accused guilty for commission of offence punishable under Section 302 of the Indian Penal Code (IPC) and sentencing him to suffer Imprisonment for Life and to pay a fine of Rs.5,000/- and in default, to undergo Rigorous Imprisonment for a period of 2 months. 2. It is the case of the prosecution that the deceased Shobha and the accused, who is her husband, were residing together at Indira Nagar Chimbel, along with a daughter and a son who were then minors. On the fateful day i.e. on 9th March, 2009, the accused came in intoxicated condition and started abusing his wife. The deceased, wife of the accused, after sometime sent her both the children to her mother's residence. It is alleged that at about 12 midnight, the accused again started altercation with his wife. During the course of heated exchange of words between the couple, it is alleged that the accused poured kerosene which was brought in a can on her person and set her on fire. The deceased shouted for help. The accused and some neighbours gathered and tried to extinguish the fire. She was thereafter taken to a hospital. On reaching the hospital, her complaint was reduced into writing by Shri S.L. Hanashikatti, P.S.I. Old Goa Police Station on 10th March, 2009 at about 11.30 hours. Crime bearing No.22/09 came to be recorded initially for commission of offences punishable under Sections 498-A and 307 of the IPC. The victim died while undergoing treatment and, thereafter, charge was altered to under Section 302 of the IPC. The police, after completing the investigation, presented the charge-sheet in the Court of Judicial Magistrate, First Class, at Panaji. The offence alleged being triable by the Court of Sessions, the case was committed to the Court of Sessions at Panaji. The trial Court framed charges in respect of the commission of offence punishable under Section 302 and Section 498A of the IPC. The offence alleged being triable by the Court of Sessions, the case was committed to the Court of Sessions at Panaji. The trial Court framed charges in respect of the commission of offence punishable under Section 302 and Section 498A of the IPC. At the trial, in order to prove the guilt of the accused, the prosecution relied upon evidence of 20 witnesses, including one dying declaration recorded by the Executive Magistrate and the complaint allegedly lodged by the deceased herself which was reduced into writing by the PSI. The defence of the accused is of total denial. According to the accused, Shobha-deceased herself poured kerosene on her person and set herself on fire. The accused noticing her engulfing in flames, tried to extinguish the fire and in the process got his hands burnt. Mangala, Pushpa, Anand, Murugh, and Subramaniam came there. Pushpa poured water on person of Shobha. Shobha stated before all those who had come there that she herself set her on fire. Srinivas and his mother took her to the hospital. The accused wanted to accompany them, however, was prevented by Srinivas. According to the accused, a false case has been lodged against him. There were antecedents of attempts by the deceased to commit suicide. On one occasion, she consumed Kerosene and was required to be admitted in a hospital. In another past incident, she tried to set herself on fire after pouring kerosene on her person. According to the accused, the deceased had suicidal tendencies and that she herself committed suicide. 3. There are two dying declarations, on which heavy reliance is placed by the prosecution, apart from the case history recorded by the Doctor PW.17 on admission of the deceased to the hospital. The complaint allegedly reduced into writing by the PSI on 10th March, 2009 at 11.30 hours is the first statement reduced into writing disclosing the circumstances leading to the death of the deceased; whereas the second dying declaration is recorded by the Executive Magistrate PW.2 Ms. Siddhi Halarnkar at 2.15 p.m. on 10/3/2009. It is brought on record that PW.17 Dr. Laura D'Souza, on admission of the patient i.e. deceased Shobha, recorded the case history in admission papers which implicates the accused. Siddhi Halarnkar at 2.15 p.m. on 10/3/2009. It is brought on record that PW.17 Dr. Laura D'Souza, on admission of the patient i.e. deceased Shobha, recorded the case history in admission papers which implicates the accused. Apart from the dying declarations, the prosecution has placed reliance on the evidence of witnesses who rushed to the scene of offence immediately after occurrence of the incident and inquired with the deceased as regards the cause of receiving burn injuries. PW.1 Uday Girija who is the brother of the mother in law of the accused and PW.6 Srinivas Nair, brother of the deceased to some extent support the case of the prosecution. However, the other witnesses examined by the prosecution, including close relations of the deceased, namely PW.7. Baby Nair mother of the deceased and PW.16 Santoshi Girija grandmother of the deceased do not support the case of the prosecution. Although the mother of the deceased PW.7 categorically states that the deceased set herself on fire and the accused was not instrumental, whereas PW.16 Santoshi, grandmother of the deceased claims ignorance as regards the cause of occurrence. PW.8 Murugan Gaunder, a neighbour PW.9 Anand Gaunder, Pushpa Gaunder PW.10, and the wife of brother of the accused whose name is referred to in the dying declaration recorded by the Executive Magistrate, do not support the case of the prosecution. All these witnesses stated that the deceased, immediately after occurrence of the incident, on inquiry by them, declared that she herself is the author of the injuries. Similar is the version of PW.11 Mangala Yusuf another neighbour, PW.12 Subramaniyam Gaunder brother of the accused and Venkatesh Gaunder PW.13 who is also a neighbour. Thus, the oral evidence of the neighbours, as well as that of the close relations of the deceased is of little help for the prosecution. All these witnesses examined by the prosecution have deposed a different story which is consistent with the defence taken by the accused. 4. Since the instant case is founded on the dying declaration recorded by the Executive Magistrate, as well as on the complaint recorded by the PSI immediately after the occurrence of the incident, both the dying declarations reduced into writing require a close scrutiny. Although the deceased is stated to have given her statement in Konkani language, both the dying declarations Exhibit 13 and Exhibit 72 are reduced into writing in English language. Although the deceased is stated to have given her statement in Konkani language, both the dying declarations Exhibit 13 and Exhibit 72 are reduced into writing in English language. In the dying declaration recorded by the Executive Magistrate Exhibit 13, the deceased stated that she was married since last six years to Sundar Gaunder and have two children, one girl aged 6 years and a boy aged 4 years. It is stated that the incident took place at around 12.00 p.m. in the night. Her husband was playing cards outside the house and she went to call him inside the house. After about 15 minutes, he came inside the house and started quarreling. He suddenly removed a can of kerosene which was below the table and put it on her and ignited her with a match stick. She stated that at the time of the incident, no one was in the house and the children were with her mother. She shouted screaming. Thereupon, her sister-in-law Pushpa Gaunder came to her rescue and put water on her. It is stated that thereafter she (Pushpa) took her to the hospital. 5. In the complaint recorded by the PSI on 10th March, 2009 (Exhibit 72), the deceased is alleged to have stated that on 9th March, 2009, at about 22.00 hours her husband Sundar came to house under influence of liquor. She asked him not to have heavy drinks and on account of that he started giving bad words to her mother. After sometime, she sent her children to the house of her grandmother Santasemma Girija and returned home. At about 24.00 hours, he again started hot discussion with her and brought kerosene can and poured the same on her body and set her on fire. She shouted for help. Her neighbours called her mother and brother Srinivas. They immediately took her to Goa Medical College, Bambolim for medical treatment. Thereafter her husband disappeared from the house. 6. On perusal of both the dying declarations, it appears that those are inconsistent with each other. In the statement recorded by the PSI, it is alleged that at 22.00 hours, the husband of the victim came under the influence of alcohol and started quarreling. Thereafter her husband disappeared from the house. 6. On perusal of both the dying declarations, it appears that those are inconsistent with each other. In the statement recorded by the PSI, it is alleged that at 22.00 hours, the husband of the victim came under the influence of alcohol and started quarreling. She took her children to the house of the grandmother and at about 24.00 hours again her husband started hot discussion and brought a kerosene can and poured it on her body and set her on fire. Whereas, in the dying declaration recorded by the Executive Magistrate, it is stated that at around 12.00 p.m. in the night her husband was playing cards outside the house and she went to call him inside and after about 15 minutes he came inside the house and started quarreling. He removed the can of kerosene which was already kept below the table, poured the kerosene on her person and set her on fire. Origin of the incident is differently stated in both the dying declarations. In the complaint recorded by the PSI, the victim stated that her husband came at about 10 O'clock and at that time he was already drunk; whereas in the dying declaration recorded by the Executive Magistrate it is stated that her husband was playing cards outside the house at around 12 O'clock and she went outside and called her inside. There is some inconsistency as regards bringing of kerosene can in the complaint recorded by the PSI. It is stated that he brought the kerosene can and poured on the person of the deceased while he came at about 24.00 hours in the house; whereas in the statement recorded by the Executive Magistrate, it is stated that the kerosene can was already kept below table which was opened and he poured the kerosene on her person. In the statement recorded by the Executive Magistrate, it is stated by her that Pushpa Gaundar came to her rescue and put water on her and she took her to the hospital; whereas in the statement recorded by the PSI, it is stated that her mother and brother Srinivas brought her to the hospital. In the statement recorded by the Executive Magistrate, it is stated by her that Pushpa Gaundar came to her rescue and put water on her and she took her to the hospital; whereas in the statement recorded by the PSI, it is stated that her mother and brother Srinivas brought her to the hospital. The statement recorded by the PSI discloses that after the accused came home at 10 O'clock and started quarreling, she reached her children to her grand mother's house; whereas in the statement recorded by the Executive Magistrate, there is no reference as regards quarrel with her husband at 10 O'clock and also reaching her children to the house of her grandmother. 7. Apart from the discrepancies discussed above, it is to be noted that the deceased gave statement in Konkani languages; whereas the Executive Magistrate and the PSI, both reduced the same in writing in English language. It is a categorical admission of PW.2 Siddhi Halarnkar that the exact words uttered by Shobha are not mentioned in the dying declaration. The witness has stated that she spoke to Shobha in Konkani and she also gave statement in Konkani and thereafter it was recorded and explained to her in Konkani. But, however, the same was not recorded in her exact words, nor in question and answer form. 8. PW.20 Sadashiv Hansakutti has stated during the cross-examination that the family members of the victim were present at the time when he recorded her complaint. Her mother was present with her in the ward. 9. It is to be considered as to whether in the instant matter both, the dying declaration recorded by the Executive Magistrate and the complaint recorded by the PSI, are themselves sufficient to draw a conclusion of guilt against the accused. It is also brought on record by the prosecution that immediately after occurrence of the incident, the witnesses, including close relations and neighbours came at the scene and the deceased Shobha disclosed the cause of sustaining the burn injuries. Thus, the evidence in the form of disclosure made by the deceased immediately after the incident i.e. the oral dying declarations, shall also have to be considered along with the declaration reduced into writing. It will have to be found out whether the totality of the evidence would lead to the conclusion of guilt of the accused. 10. Thus, the evidence in the form of disclosure made by the deceased immediately after the incident i.e. the oral dying declarations, shall also have to be considered along with the declaration reduced into writing. It will have to be found out whether the totality of the evidence would lead to the conclusion of guilt of the accused. 10. The dying declaration recorded by the Executive Magistrate at Exhibit 13 refers to presence of sister-in-law Pushpa Gaundar who is stated to have reached the scene of occurrence immediately and put water on the person of the deceased. It is further recorded in the dying declaration that Smt. Pushpa took the deceased to the hospital. Pushpa is examined as PW.10 by the prosecution who has stated in her deposition that on hearing noise of the accused saying "bhabi bhabi" at around 12 in the midnight, on 9th March, 2009, she came out and entered the room of the accused. She saw Shobha burning and the accused trying to extinguish the fire with his hands. She thereafter brought a pot of water and put the water on Shobha to extinguish the fire. She states that she did not hear any fight between the deceased and the accused prior to the incident. It is further stated by her that there never used to be any fight between the accused and the deceased at any time prior to the incident. During the cross examination of the witness on behalf of the accused, the witness stated that one Murgam, Anand and Subramaniayam i.e. her husband and Mangala also attempted to extinguish the fire. When the deceased was questioned by Pushpa about the reason of fire, it was told by the deceased that she herself set her on fire and requested the witness to look after her children. The witness has deposed that prior to the incident in question, the deceased had attempted to commit suicide on three occasions. The evidence of PW.10 whose name is referred to in the dying declaration at Exhibit 13 runs counter to the case put up by the prosecution, as reflected from the dying declaration. 11. Apart from PW.10, PW.7 Baby Nair, mother of the deceased has been examined by the prosecution. The evidence of PW.10 whose name is referred to in the dying declaration at Exhibit 13 runs counter to the case put up by the prosecution, as reflected from the dying declaration. 11. Apart from PW.10, PW.7 Baby Nair, mother of the deceased has been examined by the prosecution. She does not support the case of the prosecution as regards the immediate disclosure by the deceased to her, as regards the cause of receiving burn injuries and implication of the accused as the author of the burn injuries. She denied to have stated to the police that the deceased on being questioned immediately after the occurrence of the incident, having informed her that the accused is the person who had set her on fire. In the cross examination on behalf of the accused, the witness mother of the deceased, has stated that the deceased had attempted to commit suicide by consuming kerosene on an earlier occasion. She has further stated that the deceased had also attempted to commit suicide by pouring kerosene on her body in the past. 12. The grandmother of the deceased Smt. Santoshi Girija is examined as PW.16 by the prosecution, who has also not supported the case of the prosecution. The grandmother, during her examination, has also stated that the deceased had attempted to commit suicide prior to the incident in question. 13. Apart from the close relations of the deceased, even the neighbours, namely Murugan Gaunder PW.8, Anand Gaunder PW.9, Mangala Yusuf PW.11, and Venkatesh Gaunder PW.13 have also not supported the case of the prosecution as regards immediate disclosure by the deceased about the cause of sustaining burn injuries. All these witnesses i.e. the neighbours, as well as the brother of the accused PW.12 have categorically stated that the deceased, on inquiry by the respective witnesses as regards cause of occurrence of the injuries, were told by the deceased that she herself is the author of the injuries and the burn injuries were self inflicted one. The alleged oral dying declarations of the victim, including the statement of the close relations and the neighbours bring out a totally different story. It necessitates a close scrutiny of the dying declaration recorded by the Executive Magistrate at Exhibit 13, as well as the complaint Exhibit 72 recorded by the Police Sub-Inspector. 14. The alleged oral dying declarations of the victim, including the statement of the close relations and the neighbours bring out a totally different story. It necessitates a close scrutiny of the dying declaration recorded by the Executive Magistrate at Exhibit 13, as well as the complaint Exhibit 72 recorded by the Police Sub-Inspector. 14. Brother of the mother-in-law of the accused, namely Uday Girija who has been examined as PW.1 and brother of the deceased PW.6 Srinivas Nair to some extent support the case of the prosecution. PW.1 has stated in his deposition that he saw his niece Smt. Shobha standing in the house of his sister with burns and she was crying. The deceased has not stated in the dying declaration that after sustaining burn injuries she went to the house of her mother, nor Baby Nair corroborates the contention of PW.1 that the accused is the author of the burn injuries sustained by Shobha. The version put forward by PW.1 is totally different and differs from the version given by the deceased in the dying declarations or the version put forward by Pushpa Gaunder who has been referred to in the dying declaration at Exhibit 13 or other close relations of the deceased. The mother of the deceased Baby Nair has not supported the case of the prosecution and did not implicate the accused as the author of the burn injuries sustained by Shobha. The discrepant version stated by PW.1 does not deserve acceptance. 15. So far as PW.6 Srinivas Nair is concerned, he is the brother of the deceased who stated that at around 11.30 p.m., one Anand, a neighbour of the deceased came to his house and told him that the deceased was burnt. Thereafter, he ran to the house of the decease. However, on the way he met the deceased who was in burnt condition. She is alleged to have told him that the accused had set her on fire. Then he took her to the Goa Medical College, Bambolim. 16. On consideration of the dying declarations, as well as the version of other witnesses who have been examined by the prosecution, it is not the case of anybody that the deceased came out of the house and on the way made any declaration. In both the dying declarations, it is alleged that the deceased was immediately taken to the hospital from her house. 17. In both the dying declarations, it is alleged that the deceased was immediately taken to the hospital from her house. 17. In the peculiar facts and circumstances of this case, it is required to be examined whether the dying declarations at Exhibit 13 and Exhibit 72 respectively inspire confidence. There is neither rule of law nor a rule of prudence that dying declaration cannot be acted upon unless it is corroborated. (Munnu Raja vs. State of MP, (1976) 3 SCC 104 ). If the Court is satisfied that the dying declaration is true and voluntary, it can base the conviction on it without corroboration. The Court has to scrutinise the dying declaration carefully and must ensure that the statement was not as a result of tutoring or prompting or a product of imagination. Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (Rasheed Beg and ors vs. State of Madhya Pradesh, (1974) 4 SCC 264 ). A dying declaration which suffers from infirmity cannot form basis of conviction (Ram Manorath and ors. vs. State of Uttar Pradesh, 1981(2) SCC 654 ). 18. When a Court is called upon to appreciate the evidence of written dying declaration, the Court has to be extremely cautious and examine with meticulous care the evidence regarding recording of the dying declaration. Merely because witnesses came forward and deposed about the recording of the dying declaration, it should not impel the Court to immediately accept the dying declaration. It has to be remembered that the declarant is not available for cross examination. Once suspicious circumstances are found in evidence, the Court should be extremely slow in placing implicit reliance on the dying declaration. It is to be remembered that the conviction can be recorded on the dying declaration if it is wholly reliable. It is, therefore, necessary for the Court to scrutinize the evidence and place reliance on the dying declaration only if the evidence in respect of the recording of the dying declaration is of sterling quality. If there are suspicious circumstances, the Court should reject the dying declaration and look for other evidence if it is available. Mechanical acceptance of the dying declaration dehors a meticulous scrutiny of evidence relating to the recording of the dying declaration, must be deprecated. 19. If there are suspicious circumstances, the Court should reject the dying declaration and look for other evidence if it is available. Mechanical acceptance of the dying declaration dehors a meticulous scrutiny of evidence relating to the recording of the dying declaration, must be deprecated. 19. In the instant matter, as has been recorded above, it is found that the two dying declarations at Exhibit 13 and Exhibit 72, one recorded by the Executive Magistrate and other by the Police Sub-Inspector in the form of a complaint, offer discrepant version. In the dying declaration recorded at Exhibit 13, the deceased is stated to have informed that at about 12.00 O'clock in the night her husband was playing cards outside the house and she went outside and called her inside the house. After about 15 minutes he came inside the house and started quarreling. Then he suddenly removed the can of kerosene which was below the table and poured it on her and he ignited her with the match stick. She stated that Pushpa Gandar came to her rescue and put water on her and she took her to the hospital. 20. In the dying declaration recorded at Exhibit 72, a totally different case is put up wherein it is stated that on 9th March, 2009 at about 22.00 hours her husband came to house under influence of liquor and she told him not to drink heavily and thereafter, he started abusing her. She stated that after sometime she sent her children to the house of her grandmother Santasemma Girija and returned back home and at about 24.00 hours he again started hot discussion with her and brought kerosene can and poured the same on her body and set her on fire. She claims that her mother and brother Srinivas brought her to Goa Medical College, Bambolim for medical treatment. The occurrence of the incident has been differently stated by her. In the dying declaration recorded by the Executive Magistrate, it is stated that the husband was playing cards outside the room; whereas in the dying declaration at Exhibit 72, she states about quarrel with her husband at 10.00 hours and that he returned back home at about 24.00 hours along with the kerosene can. In the dying declaration recorded by the Executive Magistrate, it is stated that the husband was playing cards outside the room; whereas in the dying declaration at Exhibit 72, she states about quarrel with her husband at 10.00 hours and that he returned back home at about 24.00 hours along with the kerosene can. In the dying declaration at exhibit 13, it is stated by her that the can was kept below table and her husband put it on her and set her on fire. 21. Another discrepancy is as regards the presence of Puspha Gaundar. It is stated in Exhibit 13 that Pushpa came to her rescue and put water on her; whereas in the dying declaration at Exhibit 72, it is stated that she shouted for help and her neighbours called her mother and brother and they took her to the hospital. The witnesses allegedly named by her, namely Pushpa, her mother, and her grandmother do not support the version stated by the deceased. They have categorically stated that the deceased, on inquiry after the incident, informed that the burn injuries sustained by her are self inflicted. The witnesses examined by the prosecution, including the close relations of the deceased, stated about suicidal tendencies of the deceased. In view of the discrepancies found in the two dying declarations, as well as on consideration of the oral evidence led by the prosecution, it does appear that no reliance can be placed on the evidence in the form of dying declarations for bringing home the guilt of the accused. 22. Apart from this, the Executive Magistrate, as well as the Police Sub-Inspector have categorically stated that the deceased gave answers in Konkani; whereas the dying declarations were reduced into writing in English language. The Executive Magistrate has gone to the extent of deposing that the exact words uttered by Smt. Shobha -deceased are not mentioned in the dying declaration. 23. In these circumstances, it would be quite unsafe to base the conviction on the dying declarations relied upon by the prosecution. There is inconsistency in several respects in the dying declarations. In respect of the prelude to the incident also there is variance. There is variance in respect of the actual occurrence of the incident. 23. In these circumstances, it would be quite unsafe to base the conviction on the dying declarations relied upon by the prosecution. There is inconsistency in several respects in the dying declarations. In respect of the prelude to the incident also there is variance. There is variance in respect of the actual occurrence of the incident. The variance is apparent on perusal of the dying declarations and, therefore, according to us, no reliance can be placed on the dying declarations at Exhibit 13 and Exhibit 72, since acceptance of one dying declaration necessarily renders the another as false. If in the dying declarations the truthfulness of the narration itself is rendered doubtful, no reliance whatsoever can be placed on the dying declarations. Merely because the overt act attributed to the accused is consistent in both the dying declarations, would not make the dying declarations a reliable piece of evidence. The dying declaration has to pass all the tests of reliability as the declarant is not available for cross examination. In cases where there are multiple dying declarations and acceptance of one dying declaration falsifies the other, the dying declarations have to be necessarily rejected. In our opinion, therefore, no reliance can be placed on the dying declarations at Exhibit 13 and Exhibit 72 respectively. 24. Apart from the dying declarations, the witnesses referred to in the dying declarations, as well as the close relations of the deceased, neighbours who are stated to have gathered at the scene of occurrence immediately after the incident and questioned the deceased as regards the cause of sustaining the burnt injuries, have not supported the case of the prosecution. The oral evidence led by the prosecution in fact goes to establish that the deceased was having suicidal tendencies and that the burn injuries sustained by her are self inflicted. 25. In view of the above discussion, we are of the opinion that it would be quite unsafe to rely upon the prosecution version and hold the accused guilty. A serious doubt is raised as regards the involvement of the accused in the alleged crime. 25. In view of the above discussion, we are of the opinion that it would be quite unsafe to rely upon the prosecution version and hold the accused guilty. A serious doubt is raised as regards the involvement of the accused in the alleged crime. It is no doubt true that the accused was present at the scene and tried to extinguish the fire and during his attempts to extinguish the fire he also sustained burn injuries, which is a factor requires to be considered favourable to the accused in the facts and circumstances of the case. 26. For the reasons recorded supra, we are of the opinion that the accused needs to be extended a benefit of doubt. The appeal is allowed. The conviction and sentence imposed against the accused in Sessions Case No.21/2009, recorded on 18.10.2012 by the Additional Sessions Judge, Mapusa deserves to be quashed and set aside and the same is, accordingly, quashed and set aside. The accused is acquitted of the charge levelled against him and shall be set free forthwith, if not required in any other case. The fine amount, if any paid by the accused, shall be refunded to him. Muddemal property shall be disposed of after the appeal period is over. The Registry is directed to issue final writ on receipt of the operative part of the order. Appeal allowed.