Deepak Baliram Bajaj and another Vs. State of Maharashtra

265 of 1991

20th April, 1993

Petitioner Counsel: Shirish Gupte, s

Evidence Act (1872),S. 32, Penal Code (1860),,S. 302


MUKHERJEE, C. J. :-For committing the murder of Jyoti Dipak Bajaj in furtherance of their common intention, her husband Dipak Baliram Bajaj (appellant No. 1) and her father-in-law Baliram Nichaldas Bajaj (appellant No. 2) have been convicted under Section 302 read with Section 34 of the Indian Panel Code by the learned Additional Sessions Judge, 4th Court, Thane, and sentenced to suffer imprisonment for life and to pay a fine of Rs. 200/- in default to suffer rigorous imprisonment for 15 days. Aggrieved thereby they have filed the present appeal.

2. Jyoti, (the deceased) was given in marriage to the appellant No. 1 by her mother Saraswati (P.W. 2) two years before her death. Since marriage, she was living in Camp No. 5, Ulhasnagar along with her husband and father-in-law, while her mother and brother Nandlal (P.W. 4) were living in Camp No. 4.

3. On July 28, 1989, at or about 1.00 a.m. the appellant No. 1 went to the house of P. W. 2 and reported that Jyoti had set herself on fire after pouring kerosene oil on her body and sustained injuries. He requested her to accompany him and bring Jyoti back to her house for treatment and assured her that all expenses thereof will be borne by him. She then, accompanied by appellant No. 1, went to her house followed by her son Nandlal. On seeing the condition of Jyoti, they arranged her removal first to the Sarvanand Hospital and then to the Central Hospital, Ulhasnagar, where she succmbed to her injuries in the following evening.

4. According to the prosecution case, immediately after Jyoti was admitted in the Central Hospital, a message of her admission and for recording her statement was communicated to the Hill Line Police Station by the hospital authorities. On receipt of that message PSI Bhosale (P.W. 1) of Hill Line Police Station reached the hospital along with Ramesh Makhija (P.W. 6), a Special Executive Magistrate. After Dr. Ingale (P.W. 7), Medical Officer of the hospital certified that Jyoti was fully conscious and fit to make a statement, the Magistrate recorded her statement. As the statement disclosed that the two appellants had poured kerosene oil on Jyoti's body and set her on fire, P.S.I. Bhosale registered a case against them under Section 307 read with Section 34 of the Indian Penal Code on the basis thereof, took up investigation and on completion thereof submitted charge-sheet against them under Section 302 read with Section 34 of the Indian Penal Code.

5. The appellants pleaded not guilty to the charge levelled against them; and during their examination under Section 313 of the Code of Criminal Procedure both of them stated that Jyoti committed suicide by setting herself on fire for she did not wish to live with the appellant No. 1 in view of the illicit intimacy she developed with one Kanhayalal.

6. That Jyoti died owing to burn injuries stands established by uncontroverted overwhelming evidence on record. Such evidence need not be detailed and discussed as the appellants have also admitted that Jyoti died due to burn injuries. Such being the state of things obtaining on record, the only point that falls for our consideration in this appeal is whether the prosecution has been able to conclusively prove that the appellants in

furtherance of their common intention, set her on fire after pouring kerosene oil on her body.

7. In the absence of any eye-witness the prosecution to prove this part of its case relied solely upon the dying declarations made by Jyoti to her mother Saraswati (PW. 2) and brother Nandlal (P.W. 4) and to Shri Makhija, (P.W. 6) which was reduced into writing.

8. Law is now well settled that if the Court is satisfied that the dying declaration is a truthful version as to the circumstances of death and identity of assailants, it can be made the basis of conviction, even though it is not corroborated. In other words, if the dying declaration inspires confidence, the Court can safely act upon the same without insisting upon any corroboration thereof and recording a conviction thereon. Let us now therefore consider the dying declarations in the light of the other facts and circumstances appearing on record, keeping in view the above principle.

9. Both P.Ws 2 and 4 stated that after they learnt from the appellant No. 1 that Jyoti had sustained burn injuries, they went to his house and found Jyoti lying there with her body covered with a Chaddar. When they enquired of her as to how she sustained the burns she did not give an answer thereto; but asked for some water and told them to take her to the hospital immediately. Padambai Chawla (P.W. 3), the landlady of the appellants, who came to the house on hearing the cries of Jyoti also stated that she did not tell her as to how she got her burns.

10. The evidence of the above three witnesses clearly shows that at the earlier point of time Jyoti did not disclose as to how she sustained the burn injuries, though she was in a position to speak.

11. P.Ws. 2 and 4 however stated that at about noon, while at the hospital, Jyoti told them that the two appellants had caused the burn injuries to her. We are unable to rely upon the above statement of P.Ws. 2 and 4 firstly, because both of them omitted to mention such a material fact to the Investigation Officer, who recorded their statements under Section 161 of the Code of Criminal Procedure; secondly, because P.W. 2 admitted that Jyoti did not complain to anybody in the hospital about the incident; and lastly, because on the own showing of P.Ws. 2 and 4 Jyoti did not disclose to them that the appellants had set her on fire even when they had earlier enquired of her as to how she sustained the burns.

12. P.W. 6 stated that on being asked by Hill Line Police Station he went to the Central Hospital, Ulhasnagar, in the morning of July 28, 1989 to record the statement of one Jyoti Bajaj. After reaching the hospital he, accompanied by Dr. Ingale, went to the bed where Jyoti was lying. He asked the doctor whether she was fit to give any statement and, as the doctor replied in the affirmative, he proceeded to get her statement recorded by the constable on duty in the hospital. He next stated that Jyoti knew Sindhi and since he also knew that language he decided to put questions in that language.

13. In describing the manner how he got the statement recorded, P.W. 6 stated that he put the questions in Sindhi, Jyoti replied them in Sindhi, then he translated the questions and answers in Hindi to the constable who recorded them in Marathi. After the statement of Jyoti was so recorded he read over the same to her in Sindhi and then took her thumb impression thereon. He lastly stated that both he and Dr. Ingale signed the statement. The statement so recorded was marked Exhibit 7. In cross-examination P.W. 6 stated that the dying declaration was always recorded by a Constable on his dictation and since Sindhi was his mother tongue he got it recorded in Sindhi in the instant case. He further stated that he felt that being a Sindhi, Jyoti would know Sindhi and hence her dying declaration was explained to her in Sindhi. He denied the defence suggestion that it was read over to her in Hindi. When his attention was drawn to an endorsement made on Ex. 7 to the effect that the same was read over to

Jyoti in Hindi he stated that that was not correct. He lastly denied the suggestion that Jyoti did not make the statement as appearing in Exhibit 7.

14. Exhibit 7 undoubtedly supports the prosecution case in as much as it contains, inter alia, a statement that on July 27, 1989 at 11.30 in the night, in course of an altercation between Jyoti and her husband over family expenses, her husband and father-in-law poured kerosene oil on her body and set her on fire. If this dying declaration can be believed, it can certainly be made the sole basis of conviction. The moot question, therefore, is whether this dying declaration can be safely relied upon to sustain the conviction and sentence recorded against the appellants.

15. In assailing the above dying declaration it was first contended on behalf of the appellant that having regard to the fact that Jyoti had sustained 100% burn and to the nature of internal injuries she sustained, as evidenced by the post-mortem examination report, she could not have made a detailed statement as appearing in Exhibit 7. It was next contended that in view of the manner in which the statement was recorded it could not be emphatically said that what was stated by Jyoti was recorded therein. In elaborating this contention it was submitted that an unusual procedure was adopted in the instant case in recording the dying declaration in as much as the patient made statements in Sindhi in answer to questions put in Sindhi. All the questions and answers where then translated into Hindi by P.W. 6 to enable the Constable to record he same in Marathi after translating from Hindi. While on this point it was also submitted that the process was reversed, if the evidence of P.W. 6 was to be believed, while explaining the contents thereof and getting the approval of a proper translation from the deponent. Another infirmity that was brought to our notice about the dying declaration was that even though P.W. 6 asserted that he had read over and explained the contents of the dying declaration to the deceased in Sindhi, the endorsement in the dying declaration clearly showed that it was read over and explained in Hindi, and not in Sindhi.

16. Having carefully considered the dying declaration (Exhibit 7) in the light of the other materials on record, we are constrained to say that it does not inspire confidence so as to make it the sole basis for upholding the order of conviction and sentence recorded against the appellants.

17. From Exhibit 7, which appears to have been recorded between 8.00 a.m. and 8.30 a.m., we find that after stating as to how she sustained the injuries, Jyoti made a further statement which, when translated in English, reads as follows :

"After the incident I was taken to the Sadanand Hospital, Ulhasnagar-5 and my husband admitted me in the hospital and from there I was taken by ambulance by my husband to Central Hospital, Ulhasnagar, on 28-7-89 at 7.40 O' clock in the morning."

18. Admittedly Jyoti had sustained 100% burn. This apart, the report of the postmortem examination discloses that most of her organs including the brain were congested and the evidence of Dr. Ingale (P.W. 7) shows that Jyoti was in great pain and agony when she was brought to the Central Hospital at 7.45 a.m. Such being the state of her health when she was brought to the hospital, it is difficult for us to believe that she would be in a position to tell the names of the hospitals were she had been taken including the postal zone number of the first hospital as also the exact time of her arrival at the second hospital. In view of such wealth of details and extremely coherent nature of the dying declaration, we find it difficult to believe that the deceased, even if conscious, could have made such a statement.

19. The above finding of ours is sufficient to discard the dying declaration but then we cannot but comment upon the manner in which it was recorded.

20. It is rather surprising that instead of cording the statement himself, P.W. 6 entrusted the job to a police constable. If P.W. 6 is to be believed, the questions were asked and answers given in Sindhi, then they were translated in Hindi to the constable who recorded the same in Marathi. That necessarily means that the constable again translated them from Hindi to Marathi. To explain the statements thus recorded in Marathi to the deponent obviously the entire process was required to be reversed. The confusion so created was worse confounded by an endorsement appearing in Exhibit 7 to the effect that it was read over and explained to the deceased in Hindi and not in Sindhi as deposed to by P.W. 6. No firm conclusion can, therefore, be drawn that Exhibit 7 correctly reproduces the questions asked and answers given by the deceased.

21. On the conclusions as above, we allow the appeal, set aside the order of conviction and sentence recorded against the appellants and acquit them of the charge levelled against them. Let the appellants, who are in jail, be released forthwith.

Appeal Allowed