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2018 DIGILAW 200 (BOM)

Sunil S/o Deorao Dhawale v. State of Maharashtra

2018-01-20

ROHIT B.DEO, VASANTI A.NAIK

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JUDGMENT : ROHIT B. DEO, J. 1. The appellant is assailing the judgment and order dated 30.11.2005 rendered by the learned 3rd Additional Sessions Judge, Nagpur in Sessions Trial Case 408/1996, by and under which the appellant-accused is convicted for offence punishable under section 302 of the Indian Penal Code (“IPC” for short) and is sentenced to suffer rigorous imprisonment for life and to payment of fine of Rs. 1,000/-. 2. The accused was prosecuted for causing the death of his wife Smt. Rajani and his mother-in-law Smt Godabai, who indubitably suffered burn injuries on 12.2.1996 at 9.15 p.m. or thereabout at the residence of Smt. Godabai situated at Barde Layout, Borgaon within the jurisdiction of Koradi Police Station. Smt. Rajani, the wife of the accused succumbed to the burn injuries on 13.2.1996 and her mother Smt. Godabai expired on 17.2.1996. The learned Sessions Judge was pleased to record a finding that the death of Godabai was accidental, which finding is not questioned by the State and has assumed finality. The accused is convicted under section 302 of the Indian Penal Code for causing the death of deceased Rajani. 3. The prosecution case, as has unfolded during the course of the trial is thus: (i) Deceased Rajani and deceased Godabai suffered burn injuries at 9.15 p.m. on 12.2.1996 in the house of Godabai situated at Borgaon (Barde) within the jurisdiction of Police Station Koradi and were immediately admitted in Mayo Hospital, Nagpur. A.S.I. Shri V.T. Vairagade (PW-5) who was manning the police booth in the hospital recorded their statements (Exhibit 51 and Exhibit 52 respectively) and forwarded the same to Koradi Police Station. In the interregnum, API Shri L.M. Khobragade, who was then attached to Police Station Koradi, received a message that Rajani and Godabai are admitted in Mayo Hospital due to burn injuries and after recording the entry in the station diary, API Shri L.M. Khobragade (PW-6) rushed to the hospital. API Shri L.M. Khobragade recorded the statements of Rajani and Godabai (Exhibit 58 and Exhibit 60 respectively), after the Medical Officer certified that both the patients were in fit condition to give the statement. API Shri L.M. Khobragade recorded the statements of Rajani and Godabai (Exhibit 58 and Exhibit 60 respectively), after the Medical Officer certified that both the patients were in fit condition to give the statement. API Shri L.M. Khobragade also addressed a requisition to the Executive Magistrate to record the statements of Rajani and Godabai, pursuant to which requisition, the Executive Magistrate Shri Umesh Kale (PW-3) recorded the statements of Rajani and Godabai (Exhibit 44 and Exhibit 45 respectively) at 2.20 a.m. on 13.2.1996. On the basis of the said statements, API Shri L.M. Khobragade registered offence under section 307 of the Indian Penal Code against the accused. Consequent to the death of Rajani and Godabai, offence punishable under section 302 of the Indian Penal Code was registered against the accused. (ii) Investigation ensued, upon completion of which charge-sheet was submitted in the Court of Chief Judicial Magistrate, Nagpur who committed the proceeding to the Sessions Court. The learned Sessions Judge framed charge (Exhibit 7) for offence punishable under section 302 of the Indian Penal Code. The accused abjured guilt and claimed to be tried in accordance with law. The defence of the accused, as is discernible from the statement recorded under section 313 of the Criminal Procedure Code, 1973 and the trend and tenor of the cross-examination, is that on the fateful day, annoyed and enraged due to accused shifting the household articles from the rented premises to the house of the father of the accused, Rajani set herself afire. Rajani attempted to catch hold of the infant son aged about ten months. The accused saved the infant and attempted to extinguish the fire, in the process suffering severe burn injuries. The defence, further, is that while Rajani was trying to take the infant son from Godabai, the clothes of Godabai caught fire. (iii) The prosecution examined six witnesses to bring home the charge. PW-1 Raju Gire and PW-2 Ramesh Gire, who were the sons of elder brother of husband of Godabai and who reside on the first floor of the house, the ground floor of which was the residence of Godabai, are concededly not eyewitnesses to the incident. PW-4 Sheshrao Pund is examined since according to the prosecution version, he took the injured Godabai to the Mayo Hospital, Nagpur. PW-4 Sheshrao Pund is examined since according to the prosecution version, he took the injured Godabai to the Mayo Hospital, Nagpur. PW-3 Umesh Kale, PW-5 Vitthal Vairagade and PW-6 L.M. Khobragade are examined to prove dying declarations Exhibit 44, Exhibit 51 and Exhibit 58 respectively. 4. The learned Senior Counsel Shri A.V. Gupta appearing for the accused submits that the learned Sessions Judge fell in serious error in predicating the conviction on the dying declarations. Relying on the enunciation of law by the Hon’ble Apex Court in Amol Singh vs. State of M.P. 2008 (5) SCC 468 , Shri A.V. Gupta would submit that in view of the material inconsistencies inter se, it would be extremely hazardous and unsafe to base the conviction on the dying declarations. Shri A.V. Gupta would further submit that irrefragably the accused suffered severe burn injuries to the extent of 35% on the fateful day and was hospitalized for fifteen days. The severe burn injuries suffered by the accused, which the prosecution has made no endeavour to explain, is suggestive of the innocence of the accused and his attempt to extinguish the fire, is the submission. Shri A.V. Gupta contends that the fitness of deceased Rajani who concededly suffered 100% burns to record the dying declaration, and the voluntariness and truthfulness thereof, is in the realm of serious doubt. (i) Per contra, learned Additional Public Prosecutor would submit that although the three dying declarations are not consistent as regards the pouring of kerosene on the person of Rajani, which is also a finding recorded by the learned Sessions Judge, the dying declarations are consistent on the act attributed to the accused of having set Rajani a fire. 5. Concededly, as is also noted by the learned Sessions Judge, there is no eyewitness to the incident. The edifice of the prosecution case is constructed on three dying declarations (Exhibit 44, Exhibit 51 and Exhibit 58). While the learned Sessions Judge has not relied on dying declaration (Exhibit 51) on the premise that in the absence of medical certificate of fitness Rajani’s fitness to give the statement is doubtful, the conviction is based on the dying declarations Exhibit 44 recorded by PW-3 Umesh Kale and Exhibit 58 recorded by PW-6 L.M. Khobragade. While the learned Sessions Judge has not relied on dying declaration (Exhibit 51) on the premise that in the absence of medical certificate of fitness Rajani’s fitness to give the statement is doubtful, the conviction is based on the dying declarations Exhibit 44 recorded by PW-3 Umesh Kale and Exhibit 58 recorded by PW-6 L.M. Khobragade. Before we proceed to consider the dying declarations, it would be apposite to analyse the evidence of PW-1 Raju Gire, PW-2 Ramesh Gire, PW-4 Sheshrao Pund in the context of the contention of the defence that the dying declarations are not only marred by inconsistencies inter se, voluntariness and truthfulness thereof is suspect. 6. PW-1 Raju Gire speaks of a quarrel between the accused and deceased Rajani in the house of deceased Godabai. PW-1 has deposed to have seen a burning Rajani coming out of the house and PW-2 Ramesh Gire extinguishing the flames. PW-1 then states that Godabai was partially burnt and PW-4 Sheshrao Pund extinguished the flames. PW-1 states that PW-2 took Rajani to Mayo Hospital and Godabai was admitted to the same hospital by PW-4 Sheshrao Pund. At this stage, the witness was declared hostile and was cross-examined by the learned Additional Public Prosecutor, to scant significant effect. In the cross-examination of PW-1, it is elicited that Rajani was disappointed on coming to know from the accused that the household articles are shifted from the rented premises to the house of the father of the accused. It is further elicited that PW-1 and others persuaded Rajani to accompany the accused to his father’s house, since they did not find anything wrong in the decision of the accused. PW-1 admits that the accused was taken to the hospital by his brother whose hotel is situated infront of the residence of PW-1 and Godabai. PW-2 Ramesh Gire has deposed that he was standing in the courtyard of the house and the accused was sitting on the sofa in the front room. PW-1 states that he wrapped Rajani in blanket and took her to the Mayo Hospital in an auto-rickshaw. PW-2 claims that during the journey Rajani disclosed that her husband set her afire. In the cross-examination, the prelude to the verbal altercation between the accused and deceased Rajani is brought on record. PW-2 admits that the accused was sitting on the sofa in the front room with his infant son. PW-2 claims that during the journey Rajani disclosed that her husband set her afire. In the cross-examination, the prelude to the verbal altercation between the accused and deceased Rajani is brought on record. PW-2 admits that the accused was sitting on the sofa in the front room with his infant son. PW-2 further admits that after he and Godabai came out of the house and in the courtyard, Rajani went into the kitchen room and the accused and the infant son continued to sit on the sofa. It is elicited that when Rajani came out of the inner room in burning condition, PW-2 and Godabai went into the first room. PW-2 further admits that Rajani was trying to take her infant son close to her. PW-2 further admits that Godabai took the son to save him and her clothes caught fire. PW-2 admits that accused prevented Rajani from lifting the infant son and that the accused was lying in the front room when PW-2 extinguished the flames. PW-4 Sheshrao Pund is examined since he admitted Godabai in the hospital. PW-4 claims that during the hospital Rajani disclosed that the accused poured kerosene on her person and set her afire. 7. The spot panchanama dated 13.2.1996 (Exhibit 12) which is admitted by the defence, records that the west facing house of Godabai consists of three rooms. The first room is the drawing hall or sitting room. From the drawing hall one enters the middle room and then the kitchen. The seizure of the plastic can of kerosene, match box and one used match stick is from the kitchen room. Shri A.V. Gupta, learned Senior Counsel strenuously urges, that testimony of PW-2 Ramesh Gire that the accused and his son were sitting on the sofa in the drawing room when deceased Rajani went into the kitchen room, is sufficient to create a reasonable doubt about the veracity of the contents of the dying declarations. The submission is, that the defence of the accused that annoyed and perturbed by the decision of the accused to shift to the house of his father, Rajani set herself afire and while extinguishing the flames and attempting to save the infant child the accused suffered severe burn injuries, is more than probabilised by the testimony of PW-2 Ramesh Gire and the topography of the residence of Godabai as is recorded in the spot panchanama (Exhibit 12). We have given our anxious consideration to the contents of the spot panchanama (Exhibit 12) and the testimony of PW-2 Ramesh Gire, and having done so, we are inclined to accept the submission of Shri A.V. Gupta that the truthfulness of the dying declarations is not free from doubt. 8. The submission of Shri A.V. Gupta, Senior Counsel that the three dying declarations are inconsistent on material aspects is equally well merited. Exhibit 51 is the first dying declaration recorded by PW-5 Vitthal Vairagade at 10-00 p.m. on 12.2.1996. Exhibit 51 records that Rajani was pouring kerosene in the stove from the can when the accused pushed her causing the can of kerosene to fall on the ground. Part of kerosene fell on the person of Rajani and then accused lit a match stick and threw it on Rajani and fled from the house. Dying declaration (Exhibit 58) which is recorded by PW-6 Laxman Khobragade post 00.30 a.m. on 13.2.1996 records that deceased Rajani was pouring kerosene in the stove to prepare tea for the accused. The accused approached her and declared. Let the issue of your willingness or otherwise to come be decided by me right now) and then after angrily pushing Rajani, he snatched the kerosene can and after pouring the kerosene on the person of Rajani set her afire. The dying declaration (Exhibit 44) recorded by the Special Executive Magistrate (PW-3) at 2.20 a.m. on 13.2.1996 is in question and answer form. In response to question 3 which is, Rajani, how did you suffer burn injuries, the response recorded is that “I was pouring kerosene, which fell.” The next question is “who poured the kerosene?” and the answer is “my husband was besides me. He poured the kerosene.” 9. The dying declarations do indeed, as is argued by Shri A.V. Gupta, learned Senior Counsel, suffer from the infirmity of inter se material inconsistencies. In Amol Singh vs. State of M.P. discrepancy as regards the manner in which the deceased was sprinkled with kerosene and set on fire is considered to be a material discrepancy. It would be relevant to refer to the following observations in the said judgment. “8. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. It would be relevant to refer to the following observations in the said judgment. “8. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. Kundula Bala Subrahmanya vs. State of A.P. (1993) 2 SCC 684 . However, if some inconsistencies are noticed between one dying declaration and the other, the Court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scrutinizing the contents of various dying declaration, in such a situation, the Court has to examine the same in the light of the various surrounding facts and circumstances. 9. It is to be noted that the High Court had itself observed that the dying declaration (Exh.P-11) scribed by the Executive Officer, (PW-9) at about 04:35 hours in the same night was not in conformity with the FIR and the earlier dying declaration (Exh.P3) scribed by ASI Balram (PW-8) in so far as different motives have been described. That is not the only variation. Several other discrepancies, even as regards the manner in which she is supposed to have been sprinkled with kerosene and thereafter set on fire.” 10. A dying declaration is admissible under section 32(1) of the Indian Evidence Act. The juristic justification for the admissibility of a dying declaration as substantive evidence, which is an exception to the rule against the admissibility of hearsay evidence which is not tested by cross-examination, is that a person who is facing imminent death would not ordinarily indulge in false implication or resort to falsehood. The sanctity of the dying declaration is juristically explained by the maxim “Nemo moriturus praesumitur mentire.” No one at the point of death is presumed to lie. The Hon’ble Apex Court enunciates the law thus in Kundula Bala Subrahmanyam vs. State of Andhra Pradesh, (1993) 2 SCC 684 : “18. The sanctity of the dying declaration is juristically explained by the maxim “Nemo moriturus praesumitur mentire.” No one at the point of death is presumed to lie. The Hon’ble Apex Court enunciates the law thus in Kundula Bala Subrahmanyam vs. State of Andhra Pradesh, (1993) 2 SCC 684 : “18. Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination, it is not credit worthy, Under section 32, when a statement is made by a person as to the cause of death or as to any of the circumstances which result in his death, in cases in which the cause of that person’s death comes into question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes a very important and a reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration. If there are more than one dying declarations then the Court has also to scrutinize all the dying declarations to find out if each one of these passes the test of being trustworthy. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same.” 11. If there are more than one dying declarations then the Court has also to scrutinize all the dying declarations to find out if each one of these passes the test of being trustworthy. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same.” 11. It is trite law, that a dying declaration can be the sole basis for conviction. However, before basing the conviction on the dying declaration, the conscience of the Court must be satisfied that the maker of the statement was in a fit condition to give the statement, the statement is voluntary and truthful and the dying declaration is free from embellishments and any other infirmity. If there are multiple dying declarations, like in the present case, the dying declarations must be closely scrutinized to ascertain whether the different dying declarations are consistent with each other in material particulars. 12. We have no hesitation in holding that in view of the inter se inconsistencies in the dying declarations, which inconsistencies touch material aspects, it would be unsafe to base the conviction on the dying declarations. Even de hors the material inconsistencies inter se, in the teeth of the admissions extracted in the cross-examination of PW-2 Ramesh Gire and the spot panchanama (Exhibit 12), the truthfulness of the dying declaration is doubtful. The mental and physical fitness of deceased Rajani, who concededly suffered 100% burns is further not free from doubt. Dying declaration Exhibit 51 recorded by PW-5 Vitthal Vairagade is discarded by the learned Sessions Judge on the ground that the fitness certificate from the Medical Officer was not obtained. Dying declaration Exhibit 44 which is recorded by PW-3 Umesh Kale, Special Executive Magistrate at 2.20 a.m. on 13.2.1996 does not bear the endorsement of the Medical Officer. However, Exhibit 43 which is the requisition addressed by PW-3 to the Medical Officer bears the endorsement purportedly by Dr. A.K. Ghomare that patient is fit to give statement. The Medical Officer is not examined presumably since the defence admitted requisition Exhibit 43. Exhibit 58 which is the dying declaration recorded by PW-6 Laxman Khobragade bears the endorsement by Dr. A.K. Ghomare that the statement was taken in his presence. The said endorsement is admitted by the defence. A.K. Ghomare that patient is fit to give statement. The Medical Officer is not examined presumably since the defence admitted requisition Exhibit 43. Exhibit 58 which is the dying declaration recorded by PW-6 Laxman Khobragade bears the endorsement by Dr. A.K. Ghomare that the statement was taken in his presence. The said endorsement is admitted by the defence. The dying declaration Exhibit 58, which we have perused from record, does not record the time of commencement or conclusion of recording. The thumb impression is so faint that it is barely visible to the naked eye. The dying declaration Exhibit 58 is not in narration form. Neither Exhibit 44 nor Exhibit 58 bear an endorsement of the Medical Officer that the patient was fit to give the statement and continued to be conscious and well oriented till the conclusion of the recording of the statements. We are conscious of the legal position that certificate of doctor is not sine qua non in view of the Constitutional Bench judgment of the Hon’ble Apex Court in Laxman vs. State of Maharashtra, 2002 (6) SCC 710 . However, there is no evidence to suggest that either the Special Executive Magistrate who recorded dying declaration Exhibit 44 or PW-6 Laxman Khobragde who recorded dying declaration Exhibit 58 made any attempt to satisfy themselves that the patient was in a fit condition to give the statement and continued to be in fit mental and physical condition till the conclusion of the recording. 13. It is irrefutable that the accused suffered serious burns in the incident. The Additional Chief Judicial Magistrate before whom the accused was produced in remand proceedings has recorded that the accused is badly injured. The learned Sessions Judge also holds, with which finding we concur, that the accused suffered 35% burn injuries. The severe burn injuries suffered by the accused is a strong circumstance suggesting that the truthfulness of the dying declarations is suspect and probabilising the defence on the touch stone of preponderance of probabilities. 14. We are satisfied, on a holistic re-appreciation of evidence on record, that the prosecution has failed to bring home the charge beyond reasonable doubt. 15. The judgment and order impugned is set aside and the accused is acquitted of the offence punishable under section 302 of the Indian Penal Code. 16. The bail bond of the accused shall stand cancelled. We are satisfied, on a holistic re-appreciation of evidence on record, that the prosecution has failed to bring home the charge beyond reasonable doubt. 15. The judgment and order impugned is set aside and the accused is acquitted of the offence punishable under section 302 of the Indian Penal Code. 16. The bail bond of the accused shall stand cancelled. Fine if any paid by the accused shall be refunded to him. 17. The appeal is allowed and disposed of. Appeal allowed.