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2014 DIGILAW 414 (BOM)

Vinayak v. State of Maharashtra

2014-02-17

S.S.SHINDE, V.M.DESHPANDE

body2014
JUDGMENT V.M. Deshpande, J. 1. Appellant/original accused no.1, though was acquitted for the offence punishable under Section 504 r/w Section 34 of the Indian Penal Code, is aggrieved by judgment and order of his conviction and sentence, dated 30.7.2011, passed by the learned Sessions Judge, Beed, for the offence punishable under Section 302 of the Indian Penal Code, by which the learned trial court directed the appellant to suffer Rigorous Imprisonment for life and to pay a fine of Rs.1,000/-, in default to suffer Rigorous Imprisonment for six months on that count. 2. Originally, in addition to the appellant, two other ladies, original accused no.2-Barkubai w/o Vinayak Pawar and original accused no.3- Barkubai w/o Baban Barde were also charged for commission of an offence punishable under Section 302 of the Indian Penal Code for committing murder of Sunita wife of the appellant and also they were charged for intentionally insulting Sunita and thereby giving provocation to her intending or knowing it to be likely that such provocation would cause said Sunita to break public peace. The learned trial court acquitted both the ladies for the offences with which they were charged. 3. It is an admitted fact that original accused no.2 Barkubai Pawar is the first wife of the appellant. Original accused no.3 Barkubai Barde is sister of the appellant. 4. The prosecution case proceeds, as it could be seen from the evidence available on record, that prior to three years of the incident, Sunita was married with the appellant. From the wedlock, they had one daughter by name Deepali. Though the appellant was married with accused no.2 Barkubai, she left his company, and therefore, his second marriage was performed with deceased Sunita. It appears that by lapse of time, first wife Barkubai returned to her matrimonial home and started residing with the appellant. Thus, the appellant was staying with two wives. 5. It is further the case of the prosecution that though initially Sunita was leading her happy married life, after returning of first wife of appellant, her days were changed and Sunita was subjected to abuses by first wife. As per the prosecution case, Barkubai used to abuse and used to say Sunita that she should not reside there. From the evidence on record, it is clear that Sunita along with her husband was staying at Ramnagar area, which is 3 to 4 kilometers away from city Beed. As per the prosecution case, Barkubai used to abuse and used to say Sunita that she should not reside there. From the evidence on record, it is clear that Sunita along with her husband was staying at Ramnagar area, which is 3 to 4 kilometers away from city Beed. 6. As per the case of the prosecution, on 21.5.2010 at about 9.30 p.m., Sunita was sleeping in the court yard. That time, the appellant called her inside house. Original accused nos. 2 and 3 were also present there. Original accused no.2 Barkubai asked Sunita that she should not reside there, however, Sunita insisted that she would continue to reside there only. Upon that, immediately, the appellant gave abuses to Sunita and poured kerosene on her person and threw the kerosene lamp (Chimani) thereon, due to which she suffered burn injuries. According to the prosecution, original accused nos. 2 and 3 then stood in the door with an intention to prevent Sunita from going outside the house. Sunita cried. Having heard her cries, villagers came there and they extinguished fire by throwing water on her person. 7. Sunita was removed to the Civil Hospital, Beed and was admitted there. According to the prosecution, PW4 Pandharinath Khade, Police Head Constable B.No.56 was posted at the outpost of Civil Hospital, Beed. He received intimation from the Medical Officer at 10.55 p.m. In order to record her statement, he sent requisition to the Medical Officer to certify as to whether she is in a position to give her statement or not. The Medical Officer, upon examination, found her to be in a position to give statement, and accordingly, PW4 Pandharinath recorded her statement on 21.5.2010. The same is at Exh.41. On the basis of her statement (Exh.41), crime was registered against three accused vide Crime No. 69 of 2010 on 22.5.2010, for the offences punishable under Sections 307, 504 r/w Section 34 of the Indian Penal Code. The investigation of the said crime was entrusted with A.P.I. PW9 Baliram Gite. During the investigation, spot panchanama was drawn in presence of panchas. So also, the inquest panchanama (Exh.31) was also drawn. The investigating officer seized kerosene can, small kerosene lamp i.e. Chimani, half burnt quilt, half burnt small ladies purse and few pieces of burnt sari from the spot. He also got the photographs of the site. Those photographs are on record at Exhs. So also, the inquest panchanama (Exh.31) was also drawn. The investigating officer seized kerosene can, small kerosene lamp i.e. Chimani, half burnt quilt, half burnt small ladies purse and few pieces of burnt sari from the spot. He also got the photographs of the site. Those photographs are on record at Exhs. 59/1 to 59/5. The statements of witnesses were recorded. The appellant was arrested on 22.5.2010. His arrest panchanama is at Exh.60. Since Sunita expired on 26.5.2010, the offence punishable under Section 302 of the Indian Penal Code was included in the said crime. After death of Sunita, her body was sent for postmortem. PW3 Dr. Kailash Bhagwat and Dr. Bangar conducted the same. The postmortem report is at Exh.37. Prior to that, provisional death certificate was issued, which is at Exh.38. Thereafter, A.P.I. PW9 Baliram Gite handed over the further investigation to P.I. Borade, who filed the charge sheet against the accused. 8. Since the offence was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. Charge was framed against the accused person vide Exh.22 under Sections 302 r/w 34 and Sections 504 r/w 34 of the Indian Penal Code. All the accused pleaded not guilty and claimed to be tried. After trial, the learned trial court was pleased to acquit the original accused nos. 2 and 3 for the offences with which they were charged and acquitted the present appellant for the offence punishable under Sections 504 r/w 34 of the Indian Penal Code. However, as indicated in the opening paragraph, the appellant was convicted for the offence punishable under Section 302 of the Indian Penal Code. 9. We have heard learned counsel Shri C.R. Deshpande appearing for the appellant and learned A.P.P. Shri S.D. Kaldate appearing for the respondent/State. We have also perused the entire original record with the assistance of the learned counsel for the appellant and the learned A.P.P. for the respondent/State. 10. In order to bring home the guilt of the appellant, the prosecution has examined PW1 Satish Nirmal, who has proved the spot panchanama (Exh. 33). Another witness is PW2 Baban Mali, who is maternal uncle of the deceased. The evidence of this witness shows that right hand and left leg of deceased Sunita were suffered by polio disease. 10. In order to bring home the guilt of the appellant, the prosecution has examined PW1 Satish Nirmal, who has proved the spot panchanama (Exh. 33). Another witness is PW2 Baban Mali, who is maternal uncle of the deceased. The evidence of this witness shows that right hand and left leg of deceased Sunita were suffered by polio disease. It is established on record by this witness that the first marriage of the appellant was solemnised with original accused no.2 Barkubai, however, said Barkubai left the appellant for five years and in spite of knowledge of his first marriage, marriage of Sunita was performed with the appellant. It appears that after lapse of time, original accused no.2 Barkubai resumed her cohabitation with the appellant and thereafter quarrel used to take place in between Barkubai and Sunita, as Barkubai used to ask Sunita that she should not reside there. According to this witness, his brother Baba Mali, who is also examined as PW6, gave information on cell phone about the burns of Sunita and according to this witness, therefore, he came to the Civil Hospital and that time Sunita informed him about the incident. 11. The next witness is Dr. Kailash Bhagwat, who has performed autopsy on the dead body of Sunita. The postmortem report is at Exh.37. According to the said document, the cause of death is shock due to 98% burns. 12. Then we have Pandharinath Khade, Police Head Constable. This witness has recorded dying declaration (Exh.41) of deceased Sunita. Another witness is PW5 Dr. Sunil Sanap, who has examined patient Sunita and certified about her fitness before recording the statement of Sunita by PW4 Pandharinath Khade and also the statement of Sunita recorded by Naib Tahsildar PW8 Abhay Maske. 13. Then we have the evidence of another maternal uncle of Sunita, namely PW6 Baba Mali, who also claims that oral dying declaration was made to him by Sunita. Another witness is PW7 Dr. Avinash Deshpande, through whom an entry, dated 22.5.2010 at 00.30 hours made in the case papers (Exh.46) of Sunita was proved by the prosecution to show that there were homicidal burns. 14. Thus, if the entire spectrum of the case is seen, it is very clear that there is no witness to the actual occurrence. Another witness is PW7 Dr. Avinash Deshpande, through whom an entry, dated 22.5.2010 at 00.30 hours made in the case papers (Exh.46) of Sunita was proved by the prosecution to show that there were homicidal burns. 14. Thus, if the entire spectrum of the case is seen, it is very clear that there is no witness to the actual occurrence. The entire case of the prosecution is based on two dying declarations, which were reduced into writing by PW4 Pandharinath Khade at Exh.41 and another recorded by Naib Tahsildar PW8 Abhay Maske at Exh.56; and the two oral dying declarations made to two maternal uncles i.e. PW2 Baban Mali and PW6 Baba Mali, as alleged by them and also the entry recorded at 00.30 hours by PW7 Dr. Avinash Deshpande on 22.5.2010. 15. When the basis for conviction is the dying declarations, then in that situation, the court must keep in mind that, the situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. The Court must be further satisfied that the deceased was in fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. 16. Keeping in view the afore said settled principle of law, which is laid down in the case of P.V. Radhakrishna vs State of Karnataka [ AIR 2003 SC 2859 ), this court has to appreciate the evidence brought on record, in order to reach to a conclusion as to whether the prosecution has successfully proved its case against the appellant beyond reasonable doubt. 17. Now, let us examine the oral dying declarations. If the entire evidence is scanned properly and it is put in order, it is clear that the first such oral dying declaration would be to PW6 Baba Ashruba Mali. Baba Mali received an information at 10.00 p.m. on phone from one Sahebrao Pawar when he was in his house. He got information from Sahebrao Pawar that Sunita was burnt. Immediately, he and his sister's son Nitin went on a motor cycle to Ramnagar, wherein house of the appellant and Sunita was situated. From his evidence, it is clear that before arrival on the spot, neighbourers were already gathered there. According to this witness, Sunita was taken to the hospital by him in a rickshaw and in rickshaw she has made oral dying declaration. The fact that Sunita was brought in the Civil Hospital by Baba, as claimed by him, is corroborated by the medical case record of deceased Sunita. The case papers of Sunita show that her registration number at the time of her admission is 17074 and date of her admission as 21.5.2010 and in column of name of kin, the name of Baba Mali is appearing. In the history, the Medical Officer has noted alleged burns, superficial to deep injuries. At 10.55 p.m. On 21.5.2010, was the first opportunity to PW6 Baba Mali to disclose the authorities, may be hospital authorities, that the author of burn injuries, according to Sunita, was the appellant. 18. In the history, the Medical Officer has noted alleged burns, superficial to deep injuries. At 10.55 p.m. On 21.5.2010, was the first opportunity to PW6 Baba Mali to disclose the authorities, may be hospital authorities, that the author of burn injuries, according to Sunita, was the appellant. 18. The non-disclosure on the part of PW6 Baba Mali to the hospital authorities about the authorship of burn injuries received by Sunita, really creates doubt about the assertion in his evidence that while admitting Sunita to the hospital in the rickshaw, she has disclosed that it is the appellant who has caused burn injuries to her. Authorship to the burn injuries was very vital piece of information. We cannot forget the fact that Sunita, the daughter of his sister Jaibai, was not alone, but through the evidence of PW2 Baban, the brother PW6 Baba Mali, it is clear that the husband of Jaibai had left her about 20 years ago, and therefore, Jaibai was residing with Baban and the marriage of Sunita must have been performed by her maternal uncles. In that backdrop, it is very difficult to digest the fact that PW6 Baba Mali will forget to disclose such vital information to the hospital authorities. Therefore, in absence of any other attending circumstance, we have no option but to reject the claim of PW6 Baba, and accordingly, we reject the so-called oral dying declaration made to PW6 Baba in a rickshaw by deceased Sunita, as alleged by PW6 Baba. 19. Now, another oral dying declaration, as claimed by the prosecution, is made to PW2 Baban Mali. Baban is real brother of PW6 Baba. Baba informed Baban about the incident and thereafter Baban reached to the Civil Hospital, where he asked Sunita as to what had happened and upon that, as per the claim of PW2 Baban, Sunita disclosed him the name of the appellant as author of her burn injuries. Police statement of this witness was recorded on 26.5.2010 i.e. after 5 days of Sunita's admission in the hospital. If the version of this witness is accepted in to, then it is clear that on 21.5.2010 itself it was within the knowledge of this witness that it is the appellant who has caused such severe burn injuries to his niece. 20. If the version of this witness is accepted in to, then it is clear that on 21.5.2010 itself it was within the knowledge of this witness that it is the appellant who has caused such severe burn injuries to his niece. 20. From the evidence of PW4 Pandharinath Khade, Police Head Constable, it is clear that there exists police out post in the Civil Hospital, Beed. Not only that, PW4 Pandharinath was on 24 hour duty there. If that is so, PW2 Baban could have disclosed such important fact to the police immediately. The person will not withheld such an important piece of information with him for good five days. Withholding of such an important piece of information, that too in relation to a very near and dear one, for a long period of five days, particularly when Jaibai was residing with PW2 Baban only, brings the assertion of PW2 Baban about the oral dying declaration by Sunita to him, under the serious cloud of suspicion. Further PW6 Baba nowhere in his evidence has confirmed the fact about the presence of Baban in the hospital. This important link is missing in the present case, when as per PW2 Baban he got the information about the incident on phone from PW6 Baba and he came to the Civil Hospital. It is PW6 Baba, who has admitted Sunita in the hospital in the night hours. Therefore, had really PW2 Baban visited hospital on the same day, naturally PW6 Baba would have confirmed the said fact in his evidence. If the medical case papers (Exh.46) are perused minutely, at 11.30 p.m. on 21.5.2010 there is an endorsement,(“HINDI”) Below this endorsement, there is a thumb impression of Jaibai, the mother of Sunita. It is most common knowledge that a girl is more attached towards her mother. In the present case, it will have more degree of attachment, because husband of Jaibai has left her about 20 years ago. The daughter and mother were at the mercy of their maternal uncles. Therefore, if Sunita was giving oral dying declaration, her mother Jaibai, would be the first person to share the atrocities committed on her by the appellant. Now, it is very clear that on 21.5.2010 at 11.30 p.m. mother of Sunita was present in the hospital. In the present case, Jaibai is not examined as prosecution witness. Therefore, if Sunita was giving oral dying declaration, her mother Jaibai, would be the first person to share the atrocities committed on her by the appellant. Now, it is very clear that on 21.5.2010 at 11.30 p.m. mother of Sunita was present in the hospital. In the present case, Jaibai is not examined as prosecution witness. This is one more circumstance as to why we are not readily accepting the assertion on the part of PW2 Baban about the oral dying declaration made to him by Sunita in hospital. To us, this part of story appears to be very unnatural, in as much as there is a doubt about the presence of PW2 Baban in the hospital and when Jaibai, who was admittedly present in the hospital, is not examined by the prosecution. Had there been oral dying declaration to Jaibai, then she would have been a star witness for the prosecution and the prosecution would not have skipped to examine her as an eye witness. In that view of the matter, we have no option but to reject the oral dying declaration, as claimed by the prosecution to have been made to PW2 Baban by deceased Sunita, and accordingly, it is rejected. 21. Then, we have very interesting noting, as found in the case papers of Sunita. The said noting is in hand writing of PW7 Dr. Avinash Deshpande. The said noting is dated 22.5.2010 and the said noting is made at 00.30 hours. The prosecution, in order to prove this noting, has examined PW7 Dr. Avinash Deshpande, who was the Medical Officer of Civil Hospital, Beed at the relevant time. His duty on the said day was of call surgeon. As per his evidence, on 21.5.2010 he was called to attend the patient Sunita having burn injuries on her person and he visited patient in the hospital. As per the claim of this witness, he has recorded history given by patient and as per the history, there was history of homicidal burns by husband. As per the evidence of Dr. Avinash, Sunita gave history of unconsciousness, however, according to the doctor on examination he found the patient conscious and well oriented. 22. Firstly, Sunita was admitted in the hospital at 10.55 p.m. on 21.5.2010. That time, the doctor, who has examined her, did not record that she was unconscious at the time of her admission. Avinash, Sunita gave history of unconsciousness, however, according to the doctor on examination he found the patient conscious and well oriented. 22. Firstly, Sunita was admitted in the hospital at 10.55 p.m. on 21.5.2010. That time, the doctor, who has examined her, did not record that she was unconscious at the time of her admission. At the time of her admission in the hospital, she has not disclosed to the attending doctor that it is her husband who caused burn injuries to her, nor PW6 Baba Mali, the maternal uncle of Sunita who accompanied her, disclosed to the doctor about the said fact. Patient Sunita was again examined at 11.30 p.m. by the attending doctor and that time it was intimated to Jaibai about the status and prognosis of patient Sunita. Now, at 00.30 hours on 22.5.2010, PW7 Dr. Avinash Deshpande was called to attend Sunita, and accordingly, he attended her. Obviously, call was given to Dr. Avinash, who was the Medical Officer, having qualification as M.S., to examine Sunita as her health must have been deteriorating, as the case papers disclose the entry at 11.30 p.m. that the health of Sunita is very serious. There was no occasion for Dr. Avinash to attend Sunita at 00.30 hours, but for the call given to him to attend the patient. It is really surprising, at a particular point of time he has recorded the history of patient. Surely that was not the time to record the history of patient. That exercise was already done by the attending doctor at the time of admission of Sunita at 10.55 p.m. Dr. Avinash Deshpande was called only to attend the patient. Therefore, the said entry in itself creates a serious doubt. 23. Further PW5 Dr. Sunil Sanap has admitted in his evidence that he was sole in-charge of the said hospital during that night. Other Medical Officers were on call duty. Further, from the evidence of Dr. Avinash Deshpande, it is really unclear as to how Sunita gave history to him. He simply asserts from the evidence that, On 22.5.2010 at 00.30 a.m. I have attended patient. I have recorded history given by patient. Another aspect of this entry will be, assuming that such history of homicidal burns at the hands of husband was given by Sunita is accepted, then it will be her oral dying declaration to Dr. Ainash Deshpande. He simply asserts from the evidence that, On 22.5.2010 at 00.30 a.m. I have attended patient. I have recorded history given by patient. Another aspect of this entry will be, assuming that such history of homicidal burns at the hands of husband was given by Sunita is accepted, then it will be her oral dying declaration to Dr. Ainash Deshpande. However, since the said history is reduced into writing by Dr. Avinash, the said oral dying declaration will convert into a written dying declaration. Now, once it is a written dying declaration, then it will have to pass the test in that respect. Firstly, no doubt, Dr. Avinash Deshpande has asserted that, on examination Sunita was found conscious and well oriented. Therefore, the said written dying declaration has passed the said test. Now, the next important question is whether such statement was really of Sunita or not. In that respect, there is no thumb impression of Sunita on record, in that respect. Further there is no endorsement of Dr. Avinash Deshpande at the relevant time that as per her history, as narrated by her, he has reduced it into writing and it was read over to her. In cross-examination, he has admitted that he has not obtained thumb impression or signature of the patient. However, in the next breath, he has volunteered that he is not in practice of obtaining signature or thumb impression of the patient on the case paper. One cannot forget the important aspect that this is not only the case paper, but this is an entry which ultimately is resulting into a written dying declaration. Therefore, it was really incumbent on the part of PW7 Avinash Deshpande to obtain thumb impression or signature of the patient to substantiate the authenticity of the said entry. In absence of such a course on the part of PW7 Dr. Avinash Deshpande, we have no option but to reject the said noting. 24. Obtaining of signature and thumb impression of the patient and the statement that the dying declaration was read over to the declarant who admits the contents thereof as true, is settled position of law. 25. In that view of the matter, now we are left with two dying declarations, namely the dying declaration (Exh.41) recorded by PW4 Pandharinath Khade; and the dying declaration (Exh.56) recorded by the Naib Tahsildar PW8 Abhay Maske. 26. 25. In that view of the matter, now we are left with two dying declarations, namely the dying declaration (Exh.41) recorded by PW4 Pandharinath Khade; and the dying declaration (Exh.56) recorded by the Naib Tahsildar PW8 Abhay Maske. 26. PW6 is the Police Head Constable. On 21.5.2010, he was on 24 hour duty at out post situated in the Civil Hospital, Beed. The Medical Officer had reported a Medico Legal Case of burnt lady to him. He received said information at 10.55 p.m. Upon receipt, he immediately issued a letter to the Medical Officer and requested the opinion of the Medical Officer as to whether the patient is in a condition to give her statement. The said letter is at Exh.40 on the record. Perusal of the said letter shows that it was received by PW5 Dr. Sanap. As per PW4 Pandharinath, the Medical Officer examined patient Sunita and opined that she was conscious to give the statement, and accordingly, he obtained the opinion in the form of endorsement of doctor with his signature. The said opinion found on the dying declaration recorded by PW4 Pandharinath reads as under:- Patient conscious/oriented in time place & person 11.30 p.m. Sd/- Medical Officer Dist. Hospital, Beed Thus, it is clear that this endorsement is made at 11.30 p.m. On 21.5.2010. PW4 Pandharinath Khade further proceeds to record the dying declaration after the above endorsement. The said dying declaration is reduced into writing on a piece of paper. The said dying declaration is at Exh.41 and the endorsement of the doctor at the end of Exh.41 reads as under : Patient conscious oriented in time place and person 12.00 a.m. 22.5.2010 Sd/ Medical Officer Thus, it is very clear that Exh.41 is recorded by PW4 Pandharinath Khade in between 11.30 p.m. on 21.5.2010 to 12.00 a.m. on 22.5.2010. As per this dying declaration, after returning of co-wife Barkubai, Sunita received torture at the hands of Barkubai. According to the dying declaration, Barkubai used to ask Sunita that she should not reside there and she used to pick up quarrel and she used to complain. In the first paragraph of this dying declaration (Exh.41), it is very clear that there is no reference to the appellant that after return of his first wife he started giving trouble to Sunita. In the first paragraph of this dying declaration (Exh.41), it is very clear that there is no reference to the appellant that after return of his first wife he started giving trouble to Sunita. On the contrary, it is Barkubai, who used to pick up quarrel and used to complain (obviously with the appellant), however, Sunita has not stated that the appellant was giving any torture to her. The second paragraph of the dying declaration (Exh.41) relates to the incident dated 21.5.2010. As per her dying declaration, that time at about 9.30 p.m. the declarant was sleeping in court yard. The appellant called her inside the house. After getting in the house, co-wife Barkubai asked the declarant that she should not reside there. The declarant replied in negative and stated that she will reside with her husband only. Immediately upon this, Vinayak gave abuses to her and poured kerosene and threw kerosene lamp on her person, due to which she received burn injuries and that time accused no.2 Barkubai and accused no.3 Barkubai sister of the appellant stood in the door. Thereafter due to burn injuries, Sunita raised hue and cry, people from locality came there and poured water on her person to extinguish the fire. After recording this statement, there is third paragraph in the dying declaration (Exh.41). PW4 Pandharinath Khade in his evidence has stated that he has read over the said statement and she admits the contents of the statement to be true and correct. Now, the question is whether this dying declaration (Exh.41) is reliable, so as to hold the appellant guilty and to record conviction against the appellant, as recorded by the learned Judge of the court below. We are afraid that this dying declaration has any sanctity in the eye of law and the conviction can be based on this dying declaration, for following reasons. (A) As noticed above, on 21.5.2010 at 10.55 p.m., PW4 Pandharinath Khade received Medico Legal Case and then he went to the hospital and gave letter to the Medical Officer, by which he expressed his desire to record dying declaration and requested the doctor to give opinion as to whether the patient is in a condition to give her statement. As observed in the preceding paragraph, the letter (Exh.40) given to the Medical Officer by PW4 Pandharinath was received by Dr. Sanap on 22.5.2010. As observed in the preceding paragraph, the letter (Exh.40) given to the Medical Officer by PW4 Pandharinath was received by Dr. Sanap on 22.5.2010. On the letter (Exh.40) there is an endorsement to that effect, which reads:- Received Dr. Sanap 22.5.2010 Medical Officer District Hospital, Beed On the top of the dying declaration (Exh. 41) there is an endorsement of Dr. Sanap, which is already reproduced in the preceding paragraph. The said endorsement was taken at 11.30 p.m. Prior to recording of dying declaration by PW4 Pandharinath, the said endorsement was made at 11.30 p.m.; whereas the endorsement, which is found below the dying declaration (Exh.41), as given by the doctor, which is also reproduced in the preceding paragraph, was at 12.00 a.m. on 22.5.2010. In that backdrop, the endorsement on the letter (Exh.40) made by Dr. Sanap on 22.5.2010 assumes greater importance, it being on 22.5.2010. Because that entry will reflect that Exh.40 the requisition was received by Dr. Sanap from PW4 Pandharinath on 22.5.2010. Thus, it is doubtful whether Dr. Sanap has really examined Sunita at 11.30 p.m., because the requisition to certify about the mental state of Sunita in order to give dying declaration was received by Dr. Sanap on 22.5.2010 and the dying declaration was recorded on 21.5.2010. (B) Further, in view of the law laid down by the Hon'ble Apex Court in the reported judgment in the case of Laxmanvs the State of Maharashtra [ (2002) 6 SCC 710 ), it is not at all necessary the certification by doctor about the mental state and orientation of the patient when the scribe of the document himself is satisfied about the declarant's mental state, state of mind and orientation. If such satisfaction of the scribe is available on record, then in that event, the certificate of the doctor to that effect can be dispensed with, and in absence thereof the dying declaration is not a waste paper. The record of the present case and the evidence of PW4 Pandharinath Khade nowhere disclose that prior to recording of the dying declaration of Sunita, the scribe i.e. PW4 Pandharinath Khade himself was satisfied about the orientation and mental state of Sunita and that, according to him, she was in a condition to give her statement. The record of the present case and the evidence of PW4 Pandharinath Khade nowhere disclose that prior to recording of the dying declaration of Sunita, the scribe i.e. PW4 Pandharinath Khade himself was satisfied about the orientation and mental state of Sunita and that, according to him, she was in a condition to give her statement. In absence of this, the ratio of Laxman's case (supra) will not come to the rescue of the prosecution, and therefore, when as there is a serious doubt whether Dr. Sanap has really examined the patient or not, particularly when the contemporaneous documents are contrary to his evidence. (C) The most vital aspect for not accepting the dying declaration (Exh.41) is the evidence of PW4 Pandharinath Khade himself. As observed supra, the dying declaration (Exh.41) is in three paragraphs. Now, PW4 Pandharinath Khade has admitted in his cross- examination as under :- 2) ..... ..... ..... Last para of statement is gist of earlier part of statement. Last paragraph is gist of the incident narrated in my words. ..... ..... ..... According to us, this part of evidence of PW4 Pandharinath has destroyed the sanctity of the statement of unfortunate lady Sunita. It is the duty of a scribe, who records the dying declaration of a declarant, to record the same in his/her words only. It is expected from the scribe to write down the narration of facts made by the declarant as it is. It is obvious, because on the basis of such declaration made by the declarant, it becomes the basis for the courts to record a finding of guilt and record conviction against the accused. Such is the importance of the declaration given by the declarant, who is expecting his/her death. In that view of the matter, the scribe of such declaration should not add or subtract anything from the narration. His duty is to note down the narration as it is. It was not surely proper on the part of PW4 Pandharinath Khade to record third paragraph, which was not narrated by the declarant. Further, there is nothing on record to show that PW4 Pandharinath has made known to Sunita that he has added last paragraph as a gist of her dying declaration. Therefore, it is a clear case of tampering with the solemn declaration of declarant Sunita at the hand of PW4 Pandharinath Khade. Further, there is nothing on record to show that PW4 Pandharinath has made known to Sunita that he has added last paragraph as a gist of her dying declaration. Therefore, it is a clear case of tampering with the solemn declaration of declarant Sunita at the hand of PW4 Pandharinath Khade. Once, it is established that he has incorporated the last para of his own, it is really doubtful whether this man has recorded the declaration of Sunita as it is as stated by her. Therefore, the same creates a very serious doubt about the entire exercise of recording of dying declaration (Exh.41), because PW4 Pandharinath Khade has a tendency to add something in the solemn document which was not admittedly stated by the declarant. In that view of the matter, the said dying declaration cannot be the basis for recording guilt against the appellant and on the basis of such declaration, we are not ready to sentence the appellant for his life as recorded by the learned trial court. 27. Now, we are left with the dying declaration (Exh.56) recorded by PW8 Abhay Maske. Abhay Maske, who was Naib Tahsildar of Beed at the relevant time, was working as the Executive Magistrate at Beed. On 22.5.2010 at 00.15 hours he received the letter from outpost of Civil Hospital, Beed. Through the said letter, police asked him to record the statement of Sunita. The said letter is at Exh.53. After the receipt of the said letter, he immediately went to the Civil Hospital, Beed. He met PW5 Dr. Sanap and requested him to accompany him and examined Sunita and gave his information as to whether she is in a fit condition or not. Accordingly, both went to the burn ward. PW8 Abhay Maske asked relatives of the patient, who were present there, to go out of burn ward. Then Dr. Sanap examined Sunita and told PW8 Abhay Maske that Sunita was in a condition to give her declaration. The endorsement of Dr. Sanap is at 12.30 a.m. on 22.10.2010 to that effect. PW8 Abhay Maske did not stop there. Thereafter in order to ascertain himself about the fitness, he put some preliminary questions to her and after his satisfaction that she is in a fit condition to give the statement, he started recording her statement. The endorsement of Dr. Sanap is at 12.30 a.m. on 22.10.2010 to that effect. PW8 Abhay Maske did not stop there. Thereafter in order to ascertain himself about the fitness, he put some preliminary questions to her and after his satisfaction that she is in a fit condition to give the statement, he started recording her statement. The statement recorded by PW8 Abhay Maske is on printed proforma of questions with blank place for writing answers. He has received the same from Mahsul Prashikshan Prabodhini, Aurangabad. As per the evidence of PW8 Abyay Maske, he asked questions chronologically and noted down the answers of Sunita in her words. To answer to question no.8, she has disclosed as to how the incident occurred. The answer to question no.8 to 10 is reproduced hereunder:- (HINDI) As per the evidence of PW8 Abhay Maske, he thereafter read over the said answer to Sunita and she admitted the contents thereof to be true and correct. In the dying declaration (Exh.56) there appears Question No. 12. The said Question no.12 reads as under:- (“HINDI”) The marathi portion (HINDI) is in hand writing. What is important is that the declarant Sunita has not replied to this question. No answer to this question is reduced into writing by the scribe in the dying declaration. Not only that, PW8 Abhay Maske has admitted in his cross-examination as under :- I did not write answer to question no.12. 28. Now, in view of the consistent view of this court, it is incumbent to record the endorsement to the effect and obviously obtain the answer to the said question. In that behalf, it will be very useful to mention about the observations made by this court in the reported judgment in the case of Paikujis/o Shankar Ataram vs State of Maharashtra [2012 ALL MR (Cri.) 2453), which are as follows :- Hence it is a material inherent infirmity in the dying declaration and, therefore, cannot inspire the confidence of the Court. When the statement was not read over to the deponent and hence not admitted by the deponent to be correct and recorded according to her say, then such a dying declaration cannot be a foundation for sustaining the conviction. When the statement was not read over to the deponent and hence not admitted by the deponent to be correct and recorded according to her say, then such a dying declaration cannot be a foundation for sustaining the conviction. Merely because it is mentioned in the printed proforma that the statement is read over to the deponent, it cannot be presumed that the actual exercise of reading over the same and getting it endorsed to be correct was actually followed. Not writing down the answer to question no. 12, according to us, is a material inherent infirmity in the dying declaration, and therefore, same cannot inspire the confidence of the court. Since, there is no answer to question no.12, we are at a loss to visualise as to whether the statement as reproduced herein above was really read over to Sunita, or on reading over the said statement to Sunita, Sunita must not have admitted the contents of the same, and therefore, she must have refused to give answer to the said question. Further it is really impossible to digest that the declarant will give the percentage of her burns as described. Further, there is nothing on record to point out that Sunita was aware or made aware that the neighbourers made a phone call to her parental house, then how she was making that particular statement. As discussed in the preceding paragraphs, her maternal uncles reached on the spot after getting the information. However, there is no reference of the maternal uncles in the dying declaration. The reference is, (HINDI). Since there is nothing on record that Sunita was having any brother, it creates serious doubt about the truthfulness of recording of the dying declaration. 29. Another important aspect in the said dying declaration is that there is no reference to accused no.3 Barkubai the sister of the appellant. It was the consistent case of the appellant during trial that these two Barkubais (accused nos. 2 and 3) were present. 30. Further the doctor, who has examined Sunita at the time of her admission, found that her both right and left upper limbs were burnt to the extent of 9 per cent, which clearly shows and suggests that they were completely burnt. The inquest panchanama (Exh.31) also shows that both right and left hands of Sunita were burnt. 30. Further the doctor, who has examined Sunita at the time of her admission, found that her both right and left upper limbs were burnt to the extent of 9 per cent, which clearly shows and suggests that they were completely burnt. The inquest panchanama (Exh.31) also shows that both right and left hands of Sunita were burnt. In spite of that, on minute perusal of the thumb impression appearing on the dying declaration (Exh.56) recorded by PW8 Abhay Maske shows ridges and curves clearly, which is just undigestible and is one more circumstance for creating doubt in respect of the said dying declaration. 31. The prosecution further brings its case within the darker cloud of suspicion through the evidence of the investigating officer PW9 Baliram Gite. As observed in the preceding paragraph of the judgment, at Exhs. 59/1 to 59/5 there are the photographs of the spot of the incident. Photograph Exh.59/1 clearly shows a broken door having black marks on the same by the side of wall of the room of the incident. In fact, A.P.I. PW9 Baliram Gite has admitted the said fact in his cross-examination. Further what is important is that he has admitted that, It is true that both hands and face of Vinayak were having burn injuries. That is noted in arrest panchanama Exh. 60. The arrest panchanama (Exh.60) also shows the same. Now, when there were burn injuries on both the hands and face of the appellant, it was the primary duty of the investigating officer to refer him to the Medical Officer and to explain the injuries. It is because he has received the said burn injuries in the same incident. The prosecution is not obliged to explain each and every injury appearing on the person of the accused at the time of his arrest, however, once it is clear that the appellant has received the injuries in the same incident, it was the duty of the investigating officer to refer the accused for his examination. No doubt, it is true that the prosecution is not obliged to explain minor injuries those have occurred on the body of the accused in the incident in question, however, for that purpose it has to be established on record that the injuries suffered by the accused in the very same incident are very minor in nature. 32. No doubt, it is true that the prosecution is not obliged to explain minor injuries those have occurred on the body of the accused in the incident in question, however, for that purpose it has to be established on record that the injuries suffered by the accused in the very same incident are very minor in nature. 32. In the present case, though at the time of arrest the investigating officer has found that both the hands and face of the appellant were having burn injuries and in fact he has noted the same in the arrest panchanama (Exh.60), it was his duty to refer the appellant to the Medical Officer for treatment and also to obtain the opinion about the extent of the injuries suffered by the appellant. In absence of examination of the appellant in respect of his burn injuries, we are at a loss to fathom the nature and the extent of injuries. In that view of the matter, such non-explanation assumes greater importance, especially when the available evidence in the form of dying declaration, which is found unworthy to be accepted and further two oral dying declarations made to the maternal uncles who are the interested witnesses. Therefore, such non-explanation of the injuries appearing on the person of the appellant is also one of the circumstance, by which we can safely reach to the conclusion that the prosecution has really failed to dispel the clouds of suspicion. 33. Further, the investigating officer PW9 Baliram Gite has admitted that he has recorded the statement of the witnesses whose names were disclosed by the maternal relatives of the deceased. Now, according to us, this investigating officer has not investigated the said crime honestly. We are compelled to state this, because it is Sahebrao Pawar, who gave information to PW6 Baba Mali about the incident. Not only that, he has admitted in his cross-examination the presence of the neighbourers on the spot. Therefore, inspite of availability of the independent witnesses, for reasons best known to the investigating officer, he has recorded the statements of only those witnesses whose names were disclosed by the maternal relatives of the deceased. Further, as observed and as admitted by PW9 Baliram Gite, broken door is appearing by the side of the wall in photograph Exh.59/1. Admittedly, Sunita was a patient of polio of leg and hand. Further, as observed and as admitted by PW9 Baliram Gite, broken door is appearing by the side of the wall in photograph Exh.59/1. Admittedly, Sunita was a patient of polio of leg and hand. Therefore, it is clear that she will not be able to broke open the door. In this backdrop, the injuries as appearing at the hands and face of the appellant assumes importance and create serious doubt as to the fact whether the appellant really was the author of the burn injuries caused to Sunita. 34. In that view of the matter, we are of the firm view that the prosecution has utterly failed to bring its case out of dark clouds of suspicion, and therefore, according to us, it is a fit case wherein benefit of doubt has to be extended in favour of the appellant, and accordingly, we extend the same in favour of the appellant. 35. In the result, present appeal is allowed. The judgment and order of conviction, dated 30.7.2011, passed by the Additional Sessions Judge, Beed, in Sessions Case No. 105 of 2010 convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code is hereby quashed and set aside. The appellant be released forthwith, if not required in any other case. The fine amount, if any paid by the appellant be refunded to him. Appeal allowed.