1997 ALL MR (Cri) 1388
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
VISHNU SAHAI AND V.R. DATAR, JJ.
The State Of Maharashtra Vs. Madhukar Bhau Nalawade
Criminal Appeal No. 136 of 1983
18th September, 1996
Petitioner Counsel: Mr.I.S. THAKUR
Respondent Counsel: Mr. SHIRISH GUPTE
(A) Evidence Act (1872), S.118 - Evidence of child witness - Credibility - Evidence of such witness should be accepted only after Court has subjected it to the closest circumspection.
Child Witness - Evidence of - Credibility.
There is no impediment in the way of the Court, in accepting the evidence of a child witness but, the time-honoured view is that the evidence of such a witness should only be accepted after the Court has subjected it to the closest circumspection. The foundation for such a view is that experience shows that such witnesses can easily be tutored for they are gullible to accept what they have been tutored and it is very difficult to shake such witnesses in cross-examination once they have been tutored. [Para 16]
In the present case, the child witness who was the son of the deceased was aged about seven years at the time of the incident i.e. the murder. The prosecution tried to establish that the child witness did see the incident. But no FIR was lodged either by his grand-mother to whom he went immediately after the incident and with whom he stayed thereafter or by any other witness. He was interrogated under Section 161, Cr.P.C. two days after the incident and there was no satisfactory explanation for the delay. The Investigating Agency tried to tutor him on the day prior to his being called for evidence in the trial Court. In the circumstances, his testimony was liable to be rejected. The infirmities mentioned above were clearly compatible with the inference that he did not see the incident. Had he actually witnessed the incident he would have disclosed the same to his grand-mother and if that was so, she would have lodged on FIR. She would not have taken the death of her daughter so casually. 1959 All.L.J.239 and AIR 1979 SC 135 foll. [Para 16A,16B,16C]
(B) Evidence Act (1872), S.32 - Evidentiary value of dying declaration - Two dying declarations - Dichotomy between them - Name of accused mentioned only in second dying declaration - Presence of mother of deceased at the time of recording it - Held, dying declarations were liable to be rejected. AIR 1958 SC 22 and AIR 1974 SC 332 foll.
(C) Evidence Act (1872), S.32 - Recording of dying declaration - It should always be recorded in exact words stated by victim.
Dying declaration - Recording of . (Para 18)
(D) Evidence Act (1872), S.9 - Indentification parades - Prosecution witness knowing name of accused a week after incident - Held, prosecution should have sent such witness at test parade to identify accused - Identification by such witness for first time in Court had no legal value AIR 1979 SC 1127 foll. (Para 20)
1996 Cr.L.J.2867 [Para 14]
1959 Allahabad L.J.239 [Para 16]
AIR 1979 SC 135 [Para 16B]
AIR 1958 SC 22 [Para 18]
AIR 1974 SC 332 [Para 18]
AIR 1979 SC 1127 [Para 20]
AIR 1957 SC 637 [Para 21]
VISHNU SAHAI, J. :- By means of this appeal, preferred under section 378(1) Cr.P.C. the appellant seeks to challenge the acquittal of the respondent under section 302 I.P.C. recorded vide order dated 30-8-1982, passed by the Additional Sessions Judge, Greater Bombay, in Sessions Case No.400 of 1981,
The respondent was having illicit relationship with deceased Pentamma daughter of Laxmibai Ambaji Keramkunda, PW 2. The evidence of Laxmibai is that nearly about 10 years prior to the incident, Pentamma had been married and from the wed-lock two children namely a son Babu PW 3 and also known as Baburao and a daughter Ambubai were born to her. Nearly about four years prior to the incident, Pentamma's husband left her. Thereafter, Pentamma is alleged to have started living in Laxmibai's hut. It is said that the respondent who is Sub-Inspector of Police used to visit the hut of Laxmibai because, there were reports that she indulged in the trade of illicit liquor. His visits resulted in his initially developing friendship with Pentamma and thereafter, the same was converted into an illicit relationship. Laxmibai did not like this. Consequently, she asked Pentamma to take a separate room. It is said that Pentamma took a hut situated near the hut of Laxmibai. The same was taken on hire from PW 7 Shashikant Bhagwat. In the Said hut, respondent used to visit Pentamma and often used to spend the night.
The incident is alleged to have taken place on 17-6-1981. It is alleged that from four days prior to the incident, respondent was continuously living in Pentamma's hut. On the said date, in the evening, at about 7.30 pm. the respondent was drunk. He wanted to spend the night with Pentamma. The evidence is that Pentamma told the respondent that his wife and children must be worried and he should not spend the night with her. On this, the respondent became so much annoyed that he picked up a can which was filled with kerosene and was lying in the hut, poured its contents on Pentamma and thereafter, set fire to her. As a result of the act of the respondent, she was set ablaze. Naturally, she ran outside the hut, and started raising cries of 'Bachav Bachav'. Her cries attracted the attention of her neighbours including one Fatima PW 6 and PW 16 Hussainbi Allauddin Shaikh. The said ladies took Pentamma inside her hut and changed her clothes. In the meantime, it is alleged that the respondent who was in the hut tried to run away but, was apprehended by some persons, including PW 19 Sk.Hussain Bandeali. Thereafter, it is said that a taxi was sent for through one Baliya. After arrival of the taxi, Pentamma was put inside the same. The respondent was also forced in the same. Along with them, one Balu also boarded the said taxi. Thereafter, the taxi proceeded to Potdar Hospital. It may also be mentioned that the murder of Pentamma was seen by her seven year old son Babu, PW 3.
3. The evidence is that Pentamma reached Potdar Hospital at about 8 p.m. the same day. At the said hospital, Dr.Chaitan Shahu, PW 17 who at that time was Casualty Medical Officer attended on her. In the Casualty Register, Dr.Shahu made an entry to the effect that Pentamma gave history of the injuries as a result of kerosene being thrown on her body and thereafter her body being burnt. He has also mentioned therein that she did not give name of the person who was responsible for pouring kerosene. This entry in the Casualty Medical Register is the first of the two dying declarations in the instant case.
On medical examination of Pentamma, Dr. Shahu found that she sustained following injuries :-
1. 1st and 2nd degree burns over both upper extremities 9%
2. 1st and 2nd degree burns over both lower, extremities 9%. 1st and 2nd degree burns over abdomen 9% 1st and IInd degree burns over whole back 9% 1st and 2nd degree burns over face and neck 2%, 1st and 2nd degree burns over genitals 1% and 1st and 2nd degree burns over chest 2%.
He also found that she was smelling of kerosene and pupils were dilated. After attending on her, he sent her to Female Surgical Ward.
4. In the Female Surgical Ward, Pentamma was medically examined by Dr. Yagnik, PW 27. Evidence of Dr.Yagnik is that at about 8 p.m.she had examined Pentamma and found on her person following injuries :-
1. O/E - 1st and IInd degree burns over both upper extremities 9%.
2. O/E - 1st and IInd degree burns over both lower extremities 14%
3. O/E - 1st and IInd degree burns over abdomen 9%
4. O/E - 1st and IInd degree burns over whole back 9%.
5. O/E - 1st and IInd degree burns over face and neck 2%.
6. O/E - 1st and IInd degree burns over genitals 1%.
7. O/E - 1st and IInd degree burns over chest 2%
Total burns about 46%.
Dr.Yagnik also stated that she questioned Pentamma as to how she had sustained the injuries but, she did not give any proper reply. She further stated that she was unconscious and was muttering something which she could not comprehend.
4A. Meanwhile, at about the same time, constable Raghunath Ghag PW 12 made an entry in the Emergency Police Register (EPR). His evidence is that he asked Pentamma her name but, she did not understand. Thereafter he asked the respondent who was accompanying her and the respondent replied that she had quarrelled with her husband and consequently, had poured kerosene on her person and set herself on fire. Accordingly, constable Ghag made an entry to this effect in the EPR Register.
5. It may be mentioned that after making the EPR entry, constable Ghag telephonically informed the concerned police station, namely police station Worli. The telephone message was received at 8.45 p.m. by constable Sudam Sawant PW 13. The message was that a patient who was admitted in Potdar Hospital, had received burn injuries. The evidence is that SI Bajirao Patil PW 22 was also present at the police station when the said message was received. As soon as the message was received, he left for Potdar Hospital.
SI Patil reached Potdar Hospital at about 8.45 p.m. There he learnt that Pentamma was admitted in Female Surgical Ward. He contacted Dr.Yagnik PW 27 and asked her whether Pentamma was in a position to make a statement on which the said doctor replied in the negative. Thereafter, he took the necessary endorsement of Dr.Yagnik and went to constable Ghag who had made the EPR entry to find out the address of the victim and learnt that it was Gandhinagar.
SI Patil from Potdar Hospital left for Gandhinagar. At Gandhinagar, he approached PW 7 Shashikant Bhagwat, who informed him that he was owner of the hut where Pentamma was living. Thereafter, he called for two panchas and in their presence, inspected the hut and found a plastic can containing kerosene. He also found some burnt clothes and a shirt and a cap of a Police Officer. The said articles were seized under a panchanama.
On 18-6-1981, at 9.20 a.m. he again visited Potdar Hospital for the purposes of recording statement of Pentamma. She was in a semi-conscious condition. Consequently, he came back. At about 9.30 p.m. he again visited Potdar Hospital and it appears that some improvement had taken place in Pentamma's condition. His evidence is that Dr. Dubewar PW 28 told him that Pentamma was in a fit condition to make a statement. Consequently, SI Patil approached the Executive Magistrate Thosar PW 1. Along with the Executive Magistrate, he came to Potdar Hospital. At the said Hospital, the Executive Magistrate Thosar went to Casualty Department where he met Dr.Dubewar. Along with Dr.Dubewar, he went to Female Surgical Ward where Pentamma was admitted. Dr.Dubewar examined Pentamma and found that she was in a condition to make a statement. Thereafter at about 11.45 p.m. he recorded Pentamma's statement. That statement was made by her in presence of her mother Laxmibai PW 2.
I am as above today on 18-6-81 at night at 11.45 p.m. at Potdar Hospital female surgical Ward, Cot No.21. I am making the following statement to Special Executive Magistrate Shri Nana Shankar Thosar about my burn injuries.
I am staying at given address since childhood with my two children. My husband had gone to Dubai before one year. I am on friendly terms with Madhukar Nalavade (Police Sub-Inspector) since last about four years. I have not married or re-married with him but I am keeping my relations. Because he is also married and having four children (one daughter and 3 sons)
Yesterday dated 17-6-81, in the night at 7.30 p.m. I and Nalavade saheb had quarrel. That time Nalavade saheb was drunk. He said to me that tonight he will sleep here. I told him that since last four days he was here. His wife and children must be worried. Therefore, he should go to his residence. Thereupon he got angry and gave me bad word (Rand-chinnal) prostitute. Near the kitchen one plastic black can containing kerosene was lying, he took and poured the same on my body, back and stomach and set fire with match stick (match stick was taken from kitchen). At this time I was sitting in the kitchen room and my two children (Son Babu 7 years and daughter Ambika 4 yrs) were sitting in the residence. Because of this burning my wearing clothes caught fire and I sustained severe burn injuries. At the time of incident, my children started crying and person in whose room I stay Shashi and other neighbours extinguished fire (owner of hut Shashi stays on the loft of zopada adjacent).
After putting off the fire Nalavade Saheb brought me to Potdar Hospital in a taxi and in casualty department left me there and went away. Doctor examined and admitted me in hospital for further treatment.
About above incident, I have got complaint against Nalavade Saheb and request for legal action. My statement was read out and explained to me in Marathi. That time my mother Laxmibai Ambaji Kairankonde was present near my cot. My statement is correct, according to my say.
|Thumb impression of|
|Smt Laxmibai Ambaji Kairankonde,||R.T.I. of|
|Rt.thumb impression.||Smt Pentamma|
|Seal||Nana Shankar Thosar,||Both hands were burnt.|
|Special Exe.Magistrate,||Lt.thumb impression of|
|3/56, BIT Block, KK Marg Jacob||said lady could not be|
|Circle, Bombay-11.||obtained properly.|
|The attached statement of Smt.Pentamma Yemul has been recorded in my presence by Mr.Nana Thosar, SEM today 18-6-81 at 11.45 p.m., She is in a conscious condition. Her Lt. thumb impression could not obtained burns both hands. Palm fingers.|
|S/d P.I. Dharavi p.stn.18-6-81.||
Potdar Hos. Worli, Bombay.
(a) That she is staying in Gandhinagar, Rahiwashi Sangh, Zopada no.33 1/2, Worli, Bombay ;
(b) Her husband had gone to Dubai ;
(c) After her husband left for Dubai, she be came friendly with the respondent; is friendly with him for last four years; and is having illicit relationship with him;
(d) On 17-6-1981, at 7.30 p.m. respondent was fully drunk and quarrelled with her. He insisted that he would sleep in her hut but, since he was there since last four days, she told him that his wife and children must be worried and he should go to his place ;
(e) On account of her stating (What has been mentioned in (d) the respondent became infuriated, picked up a can of kerosene, poured its contents on her and set her to fire ;
(f) At that time, her son Babu aged about 7 years and daughter Ambubai aged about 4 years were inside the hut ;
(g) As a consequence of the respondent setting her to fire, she was burnt ; and
(h) After putting off the fire, the respondent brought her to Potdar Hospital in a taxi.
9. After the dying declaration was recorded, SI Patil was satisfied that a cognizable offence was disclosed against the respondent and consequently registered a case under section 307 IPC, vide C.R.no.379/1981, at police station Worli. It may be mentioned that Pentamma's statement recorded by Executive Magistrate Thosar is the FIR in the instant case. After registering the case, SI Patil reported the matter to Sr. Police Inspector V.K. Patil. Since the allegations were against a SI of police, Inspector Patil assigned the investigation to P W 29 PI Dadasaheb Sankpal.
10. It is said that during the course of investigation. PI Sankpal visited the place of the incident. He interrogated some witnesses who were the neighbours of Pentamma. On 19-6-1981, statement of PW 3 Baburao allas Babu was recorded. On 21-6-1981, an information through telephone by an anonymous caller was received at the police station that near Pentamma's hut, a drum was lying. The said drum was inspected by him in the presence of public panchas and from the said drum, a belt of a Police Officer and a pass book of Pentamma wherein her name was entered as Pentamma Nalavade were recovered.
The respondent was arrested on 19-6-1981. Pentamma succumed to her injuries on 20-9-1981 at 3.15 A.M. at Potdar Hospital and thereafter the case was converted to one under section 302 IPC.
After completion of the investigation, the respondent was charge sheeted for an offence under section 302 IPC.
11. Going backwards, the autopsy on the dead body of the deceased Pentamma was conducted by Dr.Vijay Kelvekar PW 21. On the corpse, Dr.Kelvekar found burns. The said burns were distributed between right and left thing, right leg, upper extremities abdomen, fingers of right and left hands. In the opinion of Dr.Kelvekar, these injuries were 2/3 days old and were sufficient in the ordinary course of nature to cause Pentamma's death.
Dr. Kelvekar also opined that burns on Pentamma could be caused if kerosene was poured on her clothes and thereafter she was set to fire.
12. The case was committed to the Court of Sessions in the usual manner. In the trial Court, the respondent was charged for an offence under section 302 IPC to which he pleaded not guilty and claimed to be tried. During the trial, the prosecution in all examined as many as 29 witnesses. One out of them Babu son of the deceased Pentamma, was examined as an eye-witness. In addition, it also adduced evidence of two dying declarations :-
(a) in the form of medical case papers Exhibit 30 prepared by Dr.Shahu PW 17; and
(b) statement of Pentamma recorded by the Executive Magistrate, Thosar PW 1 ;
The prosecution also tendered and proved a number of Exhibits. No witness was examined from the side of respondent.
After recording the evidence adduced by the prosecution, the statement of the respondent under section 313 Cr.P.C. and hearing the learned counsel for the parties, the learned trial Judge passed the impugned judgment acquitting the respondent under section 302 IPC.
13. We have heard Mr.I.S.Thakur, Additional Public Prosecutor for the State of Maharashtra Appellant and Mr.Shirish Gupte for the respondent. We have also perused the evidence on record, including the two dying declarations ; the material Exhibits tendered and proved by the prosecution ; the statement of the respondent recorded under section 313 Cr.P.C.; and the impugned Judgment. After giving our thoughtful reflection to the matter, we are squarely satisfied that there is no merit in this appeal and it deserves to be dismissed.
14. At the very outset, we would like to indicate that we are seized of the matter in an appeal against acquittal. The Apex Court in the decision reported in 1996 Cr.L.J.page 2867, Ramesh Doshi ...appellant v/s State of Gujrat. respondent, has held that in an appeal against acquittal, unless the conclusions reached by the trial Court are manifestly illegal or wholly untenable, the appellate Court would not be justified in interfering. In the same decision, it has reiterated the time-honoured principle that in an appeal against acquittal, it is obligatory on the part of the Appellate Court to examine the reasons assigned for acquittal and to also assign the reasons for disaggreeing with them if the Appellate Court feels that the reasons recorded in the impugned Judgment cannot be sustained then alone, it would re-appraise the evidence and arrive at its own conclusions. The relevant observations found in para 7 of the said decision reads thus :-
"This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate Court is first required to seek and answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate Court holds for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions."
15. It is in the backdrop of the said legal position that we have to examine whether the impugned judgment warrants our interference. The evidence on which, the prosecution relied upon in the instant case on the first blush, appeared to be overwhelming. That evidence is :-
(a) The ocular account deposed to by Babu, PW 3, the son of the deceased Pentamma;
(b) the dying declarations:
(i) The dying declaration of Pentamma recorded in the Casualty Register by Dr. Shahu PW 17 ; and
(ii) The dying declaration of Pentamma recorded in Potdar Hospital at about 11.45 p.m. on 18-6-1981 by the Executive Magistrate Thosar, PW 1 ; and
(c) The incriminating conduct of the respondent. Immediately after the incident he is alleged to have slipped out from Pentamma's hut and was apprehended by some persons and thereafter, literally forced in the taxi in which Pentamma was taken to the Potdar Hospital.
16. We would like to first take up the ocular account furnished by Babu, son of the deceased. We have to examine the evidence of Babu in the backdrop of the fact that he is a child witness and at the time of the incident was aged about 7 years. We are alive to the fact that there is no impediment in the way of the Court, in accepting the evidence of a child witness but, the time-honoured view is that the evidence of such a witness should only be accepted after the Court has subjected it to the closest circumspection. The foundation for such a view is that experience shows that such witnesses can easily be tutored for they are gullible to accept what they have been tutored and it is very difficult to shake such witnesses in cross-examination once they have been tutored. Our view is reinforced by the observations made by a Division Bench of the Allahabad High Court in the case reported in 1959 Allahabad Law Journal, page 239, Ram Huzoor V/s State. The Division Bench observed thus :-
" The difficulty with child witnesses often is that they can be made to believe in things which they themselves have not seen and this belief when once it gets hold of a child witness, is difficult to shake. It is also well known that child witnesses can be tutored much better than adults and further that when once a child witness has been properly tutored then such a child witness cannot easily be shaken in cross-examination."
We would also like to refer to a passage appearing on page 386 of The Outlines of the Criminal Law, written by Dr.Kenny, Downing Professor of Laws of England, Cambridge University. The said passage reads thus :-
" Children are a most untrustworthy class of witness for when of a tender age, as our common experience teaches us, they often mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others, and are greatly influenced by fear of punishment by hope of regard and desire of notoriety."
It is in the backdrop of the said legal position, that we have to appreciate the testimony of Babu, PW 3. We may mention that there is another consideration which has prompted us to appreciate his testimony with caution and that is his being the son of the deceased Pentamma.
16A. In our view, the circumstance which most patently establishes that Babu did not see the incident is that in the instant case, no FIR was lodged by either Laxmibai, his grand-mother to whom he went immediately after the incident and with whom he stayed thereafter or by any other witness. The FIR in the instant case as said earlier, was the dying declaration recorded by the Executive Magistrate Thosar, PW 1. Laxmibai PW 2 in her cross-examination was specifically asked as to why she had not lodged the FIR. The answer which she gave and which certainly does not satisfy us to be found in para 8 of her statement in terms :-
" It did not strike to me to go to police station and lodge a complaint against S.I. Nalawade."
In our view, had Babu actually witnessed the incident, he would have disclosed the same to Laxmibai and if that was so, Laxmibai would have lodged an FIR. We are not impressed by her aforesaid answer. In our view, she would not have taken the death of her daughter so casually. No mother would for that matter. In our view, the conduct on the part of Laxmibai and of the other witnesses who rushed to the place of the incident immediately after the incident had taken place, in not lodging an FIR, palpably shows that the claim of the prosecution that Babu witnessed the incident is a manufactured one.
16B. There is another circumstance which makes us have grave doubts on Babu's claim of having seen the incident. It is that he was interrogated under section 161Cr.P.C. two days later i.e. on 19-6-1981 and for the same there is no satisfactory explanation. This is not one of those cases wherein on account of the respondent being a Police Officer, the Investigating agency showed laxity in the investigation. On the contrary, we find that the evidence of P.I. Patil PW 22 is that on the night of the incident itself he had interrogated PW 7 Shashikant Bhagwat, the owner of the premises wherein Pentamma resided on rent. In our view, the delay in recording of Babu's statement under section 161 Cr.P.C. was occasioned by the fact that no one witness had actually seen the murder of the deceased being committed and hence time was spent by the investigating agency in manufacturing one.
In this connection, it would be pertinent to refer to the decision reported in AIR 1979 Supreme Court page 135, Ganesh Bhavan Patel and another.. Appellants V/s State of Maharashtra..Respondent wherein the Apex Court has observed that delay in the recording of the statement of a witness under section 161 Cr.P.C. may assume significance if the court feels that the investigator was deliberately trying to buy time in order to give shape to the prosecution case. In para 15, of the said decision, Chief Justice Y.V.Chandrachud (as he then was) has observed thus :-
"Delay of a few hours, simpliciter, in recording the statements of eye witnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced."
We are at our wit's end, that in the instant case, since the Investigating Officer started investigation right from the night of the incident, then why did he take two days for recording Babu's statement under section 161 Cr.P.C. The answer which we can fathom is that Babu actually had not seen the incident and the Investigating Agency was trying to create a false witness.
16C. There are other reasons why we are not inclined to place reliance on the testimony of Babu and one of them is the manner in which the Investigating Agency tried to tutor him in the instant case. Babu in the cross-examination blurted out that on the day prior to his being called for evidence in the trial Court, he had been tutored by the Investigating Agency. His replies to Question No.116 and 117 are relevant. The said questions and reply read thus :-
At the police station, there was talk between Inspector Sankpal and P. Constable and yourself about how Nalawade Saheb poured kerosene on your mother ?
The Officer and the constable told you to tell in the Court that Nalawade Saheb had poured kerosene on the person of your mother and set her on fire ?
In our view, the infirmities mentioned in the preceeding paras are clearly compatible with the inference that Babu did not see the incident. In our view, the learned trial Judge was wholly justified in rejecting his testimony.
17. We now come to the two dying declarations. We would like to take up the first dying declaration which is in the form of the entries made in the Casualty Register by Dr.Shahu PW 17. The evidence of Dr.Shahu is that in the hospital, he asked Pentamma about the history of her burns and she told him that kerosene oil had been poured on her. Dr.Shahu categorically stated that she had not told him that it was the respondent who had set her to fire. In other words, this dying declaration does not incriminate the respondent. From a perusal of the impugned judgment, it appears that the trial Judge was oblivious to the fact that the entries made on the information furnished by the deceased in the medical case papers, would constitute a dying declaration within section 32 of the Evidence Act.
18. We would now like to take up the dying declaration recorded by the Executive Magistrate, Thosar, PW 1. This dying declaration has been dealt with exhaustively by the trial Judge and has been rejected by him on a number of grounds which appear to be cogent. We would advert to them later on. At this stage, however, we would like to refer to the two grounds which in our opinion, are adequate for rejecting the said dying declaration and which do not find consideration in the impugned Judgment. The first amongst them is that there is a dichotomy between the dying declaration which is in the form of entries in the Casualty Register made by Dr.Shahu, PW 17, wherein name of the respondent is not mentioned and the dying declaration recorded by the Executive Magistrate, Thosar, wherein name of the respondent has been mentioned. The Apex Court in the oft-quoted case of Kushal Rao..Appellant V/s State of Bombay..Respondent, reported in AIR 1958 Supreme Court page 22, has laid down the principle that if there is more than one dying declaration, there should be consistency between them. To borrow the exact words of the Supreme Court:
"that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."
There is another reason which vitiates the evidence of the dying declaration and which again is not referred to in the impugned judgment. A perusal of the dying declaration and the evidence of the Executive Magistrate, Thosar, PW 1 and Laxmibai PW 2 shows that at the time when the dying declaration was being recorded, Laxmibai was present. It is a settled practice that when a dying declaration is recorded, no person other than the person recording it and the doctor should be present. The insistence on the observation of this salutary principle is to eliminate chances of tutoring. However, in the instant case, this principle has been given a go-bye.
Such a situation came up before the Apex Court in the case reported in AIR 1974 Supreme Court 332 Rasheed Beg and others..Appellant V.State of Madhya Pradesh.. Respondent. One Majeed Khan, brother of the deceased was along with the deceased when he made a dying declaration. The Apex Court in para 9 discussed this aspect and inferred from this fact that the deceased may have been tutored. What demonstrates that Laxmibai tutored Pentamma is the circumstances that unlike in the entries made in the Casualty Register by Dr.Shahu on the information given by Pentamma wherein the name of the respondent has not been mentioned, in this dying declaration it has been mentioned.
18A. We now take up the reasons dealt in the impugned Judgment for rejecting the evidence of the dying declaration. One of them is that the evidence of SI Patil PW 22 to the effect that at about 9.30 p.m. on 18-9-1981, at Potdar Hospital, Dr.Dubewar told him that Pentamma was in a fit mental condition to give a dying declaration is false. This reason is tenable. A reading of the evidence of Dr.Dubewar shows that on the said date, he came on duty in the hospital at 11.30 p.m.. If that was so, there was no question of his informing SI Patil at 9.30 p.m. that Pentamma was in a fit condition to give a dying declaration. The second reason in the impugned judgment for rejecting this dying declaration is the grave doubt on the part of the trial Judge as to whether Pentamma was in a fit mental condition to give a dying declaration. The evidence which would have clinched this issue would have been the medical case papers. However, in the instant case, to our dismay, we find that the medical case papers are missing and have not been traced. The prosecution on this aspect examined two witnesses namely Dr.Navin Bhatnagar PW 23 and clerk Rajaram Shirke PW 24 and each of them apportioned the blame on the other ; whereas Dr.Bhatnagar stated that he had handed over them to Rajaram Shirke, on the other hand, Rajaram Shirke candidly stated that he did not receive the case papers pertaining to Pentamma. We are not satisfied by the explanation given by the prosecution for not producing the medical case papers in view of the conflicting evidence of Dr.Navin Bhatnagar and Rajaram Shirke. The inference drawn by the trial Judge that the case papers are being sought to be suppressed because, Pentamma was not in a condition to speak cannot be faulted as unreasonable. The third reason assigned by the trial Judge for rejecting the dying declaration is the suspicious conduct of Dr. Dubewar PW 28 in examining Pentamma at the instance of the Executive Magistrate, Thosar in the Female Surgical Ward and thereafter giving an endorsement that she was in a fit mental condition to make a statement. In this connection it needs to be pointed out that Dr.Dubewar PW 28 as per his own statement was on duty in the Casualty Department at that time. The evidence is that Dr.Bhatnagar PW 23 and Dr.Yagnik PW 27 were on duty in the Female Surgical Ward where Pentamma was admitted. The evidence of Dr.Yagnik PW 27 is that she was the Registrar in Potdar Hospital and she was supposed to be on duty for 24 hours at the hospital and for the said purpose, she had been given quarters in the hospital premises. She also stated that she was supposed to attend to any patient in the Surgical Ward when called by the House Surgeon. From her evidence, it appears that she was in the hospital premises on 18-6-1981 at about 11.45 p.m. when the dying declaration was recorded.
In such a situation, the proper course for the Executive Magistrate, Thosar, was to have called her and not approach Dr.Dubewar. As a matter of fact, we are surprised that Dr.Dubewar agreed to accompany the Executive Magistrate Thosar and examine Pentamma. The proper conduct on his part would have been to inform Dr.Yagnik under whose care Pentamma was admitted. If in such a situation, the learned trial Judge has smelt something fishy, he cannot be faulted.
We would also like to point out that a perusal of the endorsement given by Dr.Dubewar which is contained in the dying declaration itself shows that the same was given after it had been recorded. The proper practice and a practice which we find is being constantly observed in Maharashtra is that the doctor first makes an endorsement that the declarant is in a fit mental condition to give a statement; thereafter statement of the declarant is recorded; and after its conclusion, again an endorsement is given by the doctor that the declarant was in a fit condition while the statement was recorded. The fourth reason that the trial Judge has given for rejecting the dying declaration is that it was not faithfully recorded by the Executive Magistrate, Thosar, in the words stated by the victim Pentamma but, the same words mentioned therein were added by him. Mr.Thosar has admitted this. It is not for us to emphasise that a dying declaration should always be recorded by a Executive Magistrate in the exact words stated by the victim. This also impairs the weight which can be attached to the dying declaration, as held by the learned trial Judge.
19. In our view, the infirmities mentioned above in the dying declaration recorded by the Executive Magistrate, Thosar, render it unworthy of acceptance. We feel that the trial Judge was wholly justified in rejecting it.
20. We now come to the last item of the prosecution evidence namely the incriminating conduct of the respondent in disappearing immediately after the incident, from the hut wherein the deceased was set to fire. On this, we have the evidence of two witnesses namely Laxmibai, the mother of the deceased, naturally a highly interested witness and PW 15 Muktambi Balesha.
We would first like to take up the evidence of PW 15 Balesha. She in her cross-examination has stated that it was a week after the incident that she had come to know of the name of the respondent. In such a situation, we feel that it was obligatory on the part of the prosecution to have sent her at the test parade to identify the respondent. In such a state of affairs, her identification of the respondent for the first time in Court, does not warrant our acceptance. The proposition is very well settled to require elucidation with the aid of authorities but for those who owe a fanatical allegiance to authorities reference may be made to the case reported in AIR 1979 Supreme Court page 1127 (Kanan V/s State of Kerala). Fazal Ali, J speaking for the Court has held in it that identification for the first time in the Court is devoid of any legal value. Thereafter, there has been a pletohra of decisions of the Apex Court on the same point but, to eschew prolixity, we are not referring to them.
Coming to the statement of Laxmibai, we find that apart from the fact that she is the mother of the victim, neither PW 6 Fatma Shaikh nor PW 16 Hussainbi Shaikh and some others who like her (Laxmibai) had also immediately reached the place of the incident, after the incident had taken place, did not state about the respondent disappearing from the hut. In such a situation, it would not be proper for us to accept the statement of Laxmibai.
Another leg of the incriminating conduct on which the prosecution heavily relies upon is that immediately after the incident, when the respondent left the hut, he was apprehended by some persons. Once it is held that the prosecution has failed to prove that the respondent disappeared from the hut immediately after the incident, then it follows as a logical corollary that it cannot be accepted that he was apprehended by persons. In this connection, the trial Judge in the impugned Judgment has mentioned and rightly in our view, that had the persons actually apprehended the respondent then they would have lodged a FIR.
It may also be mentioned that in the dying declaration of Pentamma recorded by the Executive Magistrate, it has not been mentioned that the respondent disappeared from the hut but, on the converse it has been mentioned that he brought a taxi.
21. At any rate, we would like to emphasise that the incriminating conduct of the respondent may raise a strong suspicion against him or at the highest, may lead us to infer that the prosecution case 'may be true'. But, no court ever convicts either on strong suspicions or on the circumstance that the prosecution 'may be true'. As observed in paras 9 and 11 of the Judgment reported in AIR 1957 Supreme Court, Page 637 Sarwan Singh Rattan Singh..Appellant V.State of Punjab. Respondent "but, suspicions, however strong cannot take the place of proof" (para 9) "but, between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence." (para 11).
22. We would like to point out that the recovery of a Police Officer's shirt and cap from the hut and a Police Officer's belt from a drum kept outside the hut. (The evidence of recovery of belt appears to be per se improbable and manufactured ) has been denied by the respondent in his statement under section 313 Cr.P.C. He has stated that the belt was seized from him at the time of his arrest.
At any rate, since the other evidence has been rejected it would not advance the case of the prosecution any further.
23. Pursuant to the above discussion, we are squarely satisfied that the view of acquittal taken by the trial Judge in the impugned Judgment was not only a possible view but, it was also a plausible view. It is unfortunate that a brutal murder like the present one has gone unpunished not only by the trial Court but also by us. That cannot be helped. We are not to be swayed by its brutality or by our moral conviction. In fact, we had to guard ourselves lest they may unconsciously create an instinctive reaction in our minds. What we had to see was whether the evidence adduced by the prosecution was cogent, reliable and unimpeachable. This obligation in an appeal against acquittal was all the more onerous because we could have only interfered if the view of acquittal was manifestly erroneous or clearly unreasonable. This is not the case here. Hence, we are left with no other option but to confirm the acquittal of the respondent.
24. In the result, this appeal is dismissed. The impugned judgment acquitting the respondent under section 302 IPC is confirmed. The respondent is on bail. He need not surrender. His bail bonds shall stand cancelled and sureties discharged.
Before parting with this judgment, we would be failing in our fairness, if we do not put on record our appreciation for the learned counsel for the parties for the assistance which they have rendered us in disposal of this appeal.
In case an application for certified copy of this Judgment is made, the same shall be issued on an expedited basis.