2010 ALL MR (Cri) 182
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

P.V. HARDAS AND A.V. NIRGUDE, JJ.

Laxmibai W/O. Maruti Satpute & Ors.Vs.State Of Maharashtra

Criminal Appeal No.213 of 2007

3rd November, 2009

Petitioner Counsel: Smt. S. S. JADHAV
Respondent Counsel: Mr. V. D. GODBHARLE

(A) Evidence Act (1872), S.32 - Dying declaration - Proof - Death of deceased due to burn injuries - Dying declaration recorded before Naib Tahsildar - None of witnesses for dying declaration stating as to how the incident had occurred as per narration of deceased - So-called dying declaration cannot be said to be proved as required by law. 2008 ALL MR (Cri) 1921 Followed. (Paras 6, 8)

(B) Evidence Act (1872), Ss.3, 118 - Child witness - Reliability - Murder case - Evidence of child witness daughter of deceased that accused poured kerosene on her mother and co-accused set her on fire by striking match stick - No other details as to what had happened prior to the actual incident was given by her - Child had been residing with her mother's relatives and she was only five years old when her deposition was recorded - Thus child was certainly susceptible to tutoring and must have followed the instructions, which she had received from her relatives - Evidence of child witness discarded. Penal Code (1860), S.300. (Paras 10, 11)

(C) Penal Code (1860), S.498A - Cruelty - Evidence and Proof - Witnesses brother and sister of deceased made rather vague and omnibus statements saying that deceased told them that accused persons asked her to bring money and used to ill treat her, used to beat her and used to send her to her father's house - Material on record is insufficient to convict them under S.498-A. (Para 12)

Cases Cited:
Deorao s/o. Sonbaji Bhalerao Vs. State of Maharashtra, 2008 ALL MR (Cri) 1921 [Para 7]
Panchhi Vs. State of U.P., AIR 1988 SC 2726 [Para 10]


JUDGMENT

A. V. NIRGUDE, J. :- The appellants are challenging the judgment and order passed by the learned Adhoc Additional Sessions Judge-2 Ahmednagar, (henceforth be referred as the ld. judge) in Sessions Case No.50 of 2006. The learned Judge, convicted all the appellants of the offence under section 498-A read with section 34 of the Indian Penal Code and further convicted the appellant Nos.1 and 2 for the offence under section 302 read with section 4 of the Indian Penal Code also.

2. The appellant Nos.1 and 2 are husband and wife and happened to be the parent-in-laws of the deceased Sangita, the wife of acquitted accused namely Rajendra. The appellant No.3 is another son of the appellant Nos.1 and 2.

3. The facts of the prosecution in nutshell are as follows:

The deceased Sangita got married to accused Rajendra in the year 1995. Initially, this couple resided with the joint family. But, hereafter, the couple started living separately, in their new house. The appellant Nos.1 and 2, the parent-in-laws of the deceased Sangita were staying separately. The distance between two houses was about 2 K.M. The relation between the deceased Sangita and her husband Rajendra on one hand and appellant Nos.1 and 2 were so strained, that they were not on talking terms.

4. On 20th December, 2005, the deceased Sangita was admitted in Khamkar's Hospital at about 7.45 P.M. with burn injuries. She was immediately shifted to Civil Hospital Ahmednagar, by her husband accused Rajendra. At the time of admission, the deceased Sangita was not in a position to make any statement as she had suffered 98% burn injuries. On 21st December, 2009, the Executive Magistrate recorded her statement at about 3.00 P.M. In this statement she alleged that at about 8.00 P.M., on the previous night, while her husband Rajendra was intoxicated condition, her brother-in-law and her parent-in-laws came to her house, picked up quarrel and then set her on fire. On the basis of this statement, Crime No.283 of 2005 came to be recorded at Parner Police Station for the offence punishable under sections 498-A and 307 read with section 34 of the Indian Penal Code. The appellants and other accused were arrested. On 22nd December, 2005 at about 6.45 A.M. Sangita succumbed to the injuries, so Section 302 of the Indian Penal Code was added to the charge. The police completed the investigation and submitted the charge-sheet against the accused/appellants. Eventually, the case was committed to the Court of Sessions as Sessions case No.50 of 2006. The prosecution examined in all 09 (nine) witnesses to prove their case, whereas three witnesses namely Reshma, Dr. Khamkar and Snehal, the daughter of deceased Sangita, a Child witness, were examined as court witnesses. After perusal of the record and after hearing the ld. advocates following points arise for our consideration :-

1. Whether dying declaration Exh.44 is properly proved by the prosecution as to use it as 'substantive' evidence ?

Assuming it is so proved can it be believed for the purpose of convicting the appellant Nos.1 and 2 for the offence punishable under section 302 read with section 34 of the Indian Penal Code.?

2. Whether testimony of "child witness Snehal" is worthy of reliance ?

3. Whether the prosecution proved that, the appellants treated deceased Sangita with cruelty with view to demand dowry?

5. Before we discuss the propriety and trustworthiness of the dying declaration, we must make it clear that admittedly, deceased Sangita sustained burn injuries at about 8.00 P.M. on 20th December, 2009, while she was in her house. Besides, Sangitas dying declaration and the deposition of the Child witness-Snehal there is one more deposition on record to throw light on this ghastly incident. This deposition is of Sangitas neighbour, one Smt. Shaikh Reshma, who was examined as Court witness. She said in the deposition that at the time of the incident, on hearing shouts, she came out of the house and saw that accused Rajendra and Sangita were going to the Hospital. She further stated that she did not have any talk with them, and she did not know what had happened on that day, and what was the quarrel between them or that she did not know how Sangita sustained burn injuries. She categorically admitted that she did not see the incident. It is thus clear from this deposition that immediately after the incident this witness saw only accused Rajendra, in or about the scene of the incidence, the house of the couple. She did not see the appellants there. There is no other deposition on record on this point, beside, as said above the dying declaration of sangita and deposition of her daughter Snehal.

6. The other material circumstance as said above is the dying declaration of Sangita. P.W.5 - Sharad Atmaram Mandlik, Naib Tahsildar, who recorded the dying declaration on 21st December, 2005 gave graphic details as to how he went to the Civil Hospital on that day, how he eventually reached near deceased Sangita in the company of the Medical Officer on duty and how he obtained the Medical Officer's certificate about Sangitas position to give statement. He categorically stated that, after asking all relatives of deceased Sangita to leave the room, he recorded the statement of sangita. He said, he asked Sangita about the incident. He said, he asked questions as per a formate for recording a dying declaration. He then said, deceased Sangita answered his question and he noted them as dying declaration as per her narration. He also stated, the dying declaration was read over to sangita and she admitted it be correct. He further stated, after recording of the dying declaration he again asked the duty Medical Officer to certify about fitness of Sangita for giving the statement. He then produced the dying declaration on record. The learned Judge then exhibited it as Exh.44. There is one more witness for dying declaration. It is P.W.8 Dr. Sanjay Pathare. He said that on 21st December, 2005 he was assigned Causal Duty as C.M.O. and that on that day, P.W.5 - Sharad Mandlik came to him for recording dying declaration of the deceased Sangita, who was admitted in 'burn ward'. He said, he then accompanied P.W.5 to the burn ward. He said the patient was conscious and was speaking properly. He also said that he issued such certificate. He further added that when the statement was being recorded, he was present by the side of the patient. He said, after recording of the statement, he again certified that the patient was conscious and oriented. The question is whether the depositions of P.W.5 Sharad and P.W.8 Dr. Sanjay Pathare are sufficient to exhibit the dying declaration at Exh.44? The answer to this question is in the negative. As noticed earlier, none of these witnesses stated as to how the incident had occurred as per narration of Sangita. They did not utter a single word as to what Sangita told them, how she described the incident; who were the offenders, who had poured the kerosene on her person, who had set on her fire and in what matter. Both these witnesses are silent about these important aspects and proof of Sangitas dying declaration.

7. The question as to how a dying declaration is proved before the court is discussed in a recent judgment of Our High Court in the case Deorao S/o. Sonbaji Bhalerao and another Vs. State of Maharashtra reported in 2008 ALL MR (Cri) 1921. The facts and situation in the reported case was almost similar. It was similar urged before that court that the dying declaration was proved and it was not necessary for the witnesses to depose exact word spoken by the declarator/deceased uttered about the persons who poured kerosene on her person and set her on fire, because there was presumption of genuineness attached to such dying declaration as per section 80 of the Evidence Act, it being a record of evidence given by a witness to a Magistrate authorised by Law. The Division Bench of our High Court then discussed the law on this subject, laid down by the various judgments. The Division Bench highlighted the law which required proper proof for dying declaration. It said there are three reasons for not admitting the statement without proof under section 80 of the Evidence Act. They are (i) the Magistrate who recorded such statement was not committing Magistrate, (ii) the accused was not present when such statement was recorded and (iii) accused had no liberty of cross-examining the dead person who made statement. After considering other judgments on these points, the Division Bench of Our High Court held thus :

"19. The question which arises for our consideration is whether a dying declaration is admissible without proof, under section 80 of the Evidence Act? It would be useful to reproduce the said provision.

S.80 Presumption as to documents produced as record of evidence:- Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence, or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume that the document is genuine: that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken."

Since there are a number of and and or in order to avoid any ambiguity, this Section can be separated in three parts to arrive at a plain interpretation. S.80 applied to -

(i) any document produced before any Court, purporting to be record of memoranda of evidence or of any part of the evidence given by a witness in a judicial proceedings,or

(ii) to a document purporting to be a record or memo of evidence given by a witness before any officer authorised to take such evidence, or

(iii) to a statement or confession by any prisoner or accused person taken in accordance with law and purporting to be signed by any Judge or Magistrate, or any such officer as aforesaid ( i.e. authorised by law). To put it in another way, it would be -

(a) such document is memoranda of evidence;

(b) the evidence was given by a witness; and

(c) it was given in a judicial proceedings, or before an officer authorised by law to take it.

20. The words. 'by any prisoner or accused person' govern also the word statement because if they governed only the word 'confession' the word 'statement' would be left all alone and would be too vague to make any sense. Let us put to test the submission made on behalf of the State that dying declaration recorded by a Magistrate would fall under section 80 of Evidence Act. S.80 of Evidence Act deals with presumptions to be attached to one important class of judicial documents viz depositions of witnesses in a judicial proceedings or documents recorded by an officer necessarily means in some previous proceedings. The reason is, evidence recorded in open court in judicial proceedings or by an Officer authorised to take evidence by observance of certain prescribed rules and formalities afford sufficient guarantee for presumption that it was correctly done. The rule is, Omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium-everything is presumed to be rightly and duly performed until the contrary is shown; and that the records of a Court of justice have been correctly made. For recording a dying declaration by a Magistrate, no particular procedure is prescribed by statutory law nor evidence of such a dying man is recorded in the presence of the accused, nor the accused had any opportunity of cross-examining the dying man. The dying declaration is recorded either before investigation begins or after and, therefore, it cannot be said that the same even if treated as 'evidence given by a witness' is not recorded during any previous judicial proceedings or any proceedings before an officer authorised by law to take such evidence. As Taylor, J. in the case of King Emperor Vs. Mathura Thakur, supra, rightly observed that what is made admissible by S.32(1) of the Evidence Act is the verbal statement made by the dying man to the Magistrate and not the document prepared by the Magistrate. The document made by the Magistrate does not amount to a deposition or record of evidence so as to attract the presumption under section 80 of Evidence Act. Therefore, what is admissible in evidence is the statement made by the dying man as to who was responsible for causing his death and not the paper on which dying declaration is recorded. For these reasons therefore, S.80 of the Evidence Act cannot be invoked in respect of presumption to be drawn in respect of dying declaration recorded by a Magistrate or even an officer authorised by a law to take evidence. As a sequel or our fining about inapplicability it or presumption under S.80 of Evidence Act, we further hold that the Magistrate or the person who records a dying declaration will have to testify and prove who was named as offender by the dying person before Court where trial proceedings against accused are held. In the case of Smiruddin, supra the Calcutta High Court held that the statement must have been proved in ordinary way by a person who heard it made. If for any reason the Magistrate is not available, any other person who heard it when made can also testify and they being at liberty to refresh memory by referring to the document as provided by Sections 159 and 160 of Evidence Act.

21. Section 273 of Criminal Procedure Code reads thus :

"S.273 Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the present of is pleader.

A dying declaration recorded by a Magistrate is not recorded in the presence of the accused. But S.32(1) of the Evidence Act makes the same relevant and can be proved by evidence and sanctity given to its embodied in the maxim nemo moriturus praesumitur mentire, i.e. A man will not meet his maker with lie in his month. That is why tests of oath and cross-examination are dispensed with. But then relevancy in evidence and proof by evidence are different things. Where accused is called upon to defend a charge under S.302, I.P.C., the burden of proof in the absence or presumption of law ever shifts into him. It ever remains on the prosecution which has to prove the charge beyond all reasonable doubt. The said traditional legal concept remains unchanged even now. In such a case the accused can wait till the prosecution evidence is over and then show that the prosecution has not proved particular material facts through its prosecution witness who failed to describe the names and role of the accused in the offence of murder as told by the dying man to such a witness or a Magistrate who recorded the dying declaration by merely exhibiting the documents of dying declaration its contents and in particular the names of the offenders and the role played by them in committing the offence of murder is not proved unless such witness or Magistrate vouchsafes before the trial Court as to whom did the dying person named offenders. In Narbada Devi Gupta Vs. Birendra Kumar, AIR 2004 SC 175 : [2004(5) ALL MR (S.C.) 51], the apex court in paragraph 16 held thus :

The legal position is not in dispute that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence that is by the 'evidence of those persons who can vouchsafe for the truth of the facts in issue'. The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the Court.

In Dandu Lakshmi Reedy Vs. State of A.P., 1999 ALL MR (Cri) 1784, Supra, the apex Court in para 3 held as under :

There can be a presumption that testimony of a competent witness given on oath is true, as the opposite party can use the weapon of cross-examination, inter alia, for rebutting the presumption but a dying declaration is not a deposition in Court. It is neither made on oath nor in the presence of an accused. Its credence can not be tested by cross-examination. Those inherent weaknesse s attached to a dying declaration would not justify and initial presumption to be drawn that the dying declaration contains only the truth"."

8. In view of the law discussed above, the document Exh.44, the so called dying declaration can not be said to be proved as required by law. We, therefore, hold that the prosecution has failed to prove this basic circumstance in support of its case.

9. The value of this dying declaration is diluted further because prosecution also placed reliance on two oral dying declarations, which are not in consonance with the written one. The prosecution witness No.1 Bhausaheb stated that the deceased Sangita had told him that accused Rajendra, his brother and parents had set her on fire. This certainly is different than the dying declaration recorded by the prosecution witness P.W.5 Sharad Mandlik. Another P.W.(2) Jyoti, the sister of the deceased, stated that deceased Sangita had narrated the incident to her saying that the accused poured kerosene on her person and set her on fire. This version is also different from the one recorded in writing.

10. The next circumstance is the deposition of child witness Snehal. This witness as said above is examined as Court witness. Her deposition is quite cryptic. She described the incident in very few words. She said the appellant No.1 poured kerosene on her mother and the appellant No.2 set her on fire by striking match stick. Saying this, she identified the appellant Nos.1 and 2 as the perpetrators. She has not given other details as to what had happened prior to the actual incident, what was her mother's reaction to the act allegedly done by the appellant Nos.1 and 2 etc. In the cross-examination, she admitted that, her maternal uncle and maternal grand-father kept on telling her, what she should depose in the Court. The question is whether this witness was tutored? There was strong possibility of tutoring of this witness. The incident took place in December, 2005, and since then till her deposition was recorded in the month of May, 2007, the child had been residing with her mother's relatives namely her maternal uncle and maternal grand father. Her age at the time of incident was merely three years and she was only five years old when her deposition was recorded. The child of this tender age is prone to tutoring. The Law on the subject, as to how to appreciate the evidence of 'child witness', is discussed in various judgment of the Supreme Court. One of them is the judgment in the case of Panchhi and others Vs. State of U.P. reported in AIR 1988 SUPREME COURT 2726. The Hon'ble Supreme Court held thus -

"11. Shri. R. K. Jain, learned Senior Counsel, contended that it is very risky to place reliance on the evidence of P.W.1 being a child witness. According to the learned counsel,evidence of child witness is generally unworthy of credence. But we do not subscribe to the view that the evidence of child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and thus a child witness is an easy prey to tutoring.

12. Courts have laid down that evidence of a child witness must find adequate corroboration before it is relied on. It is more a rule of practical wisdom than of law." (emphasis provided by us)

11. It is thus clear that the deposition of child witness is evaluated very carefully and with greater circumspection. As said above this child was certainly susceptible to tutoring and must have followed the instructions, which she had received from her relatives. We, therefore, discard this piece of evidence. In view of this, the case of prosecution would fail so far as it relates to charge under section 302 read with section 34 of the Indian Penal code against the appellant Nos.1 and 2.

12. The remaining question is whether the prosecution proved the offence punishable under section 498-A of the Indian Penal Code against the appellants. The answer is in the negative. The prosecution witness Nos.1- Bhausaheb and 2 - Jyoti, the father and sister of the deceased Sangita are the witnesses on this point. Both these witnesses made rather vague and omnibus statements saying that deceased Sangita used to tell them that, all accused used to say to her that she should bring money from her father; all accused used to ill treat her, used to beat her and used to send her to her fathers house. P.W.2 Jyoti, in addition to this, also stated that the deceased Sangita used to tell her that her husband ill treated her suspecting her fidelity. We find that, the material on record is insufficient to convict the appellants under section 498-A of the Indian Penal Code. The appeal therefore, succeeds.

13. This Criminal Appeal is allowed and the conviction of the appellants is hereby quashed and set aside and they are acquitted of the offences with which they were charged and convicted.

Appellant No.1 Laxmibai Maruti Satpute and Appellant No.2 Maruti Sitaram satpute are said to be in jail since the date of the incident and they be released forthwith, if not wanted in any other case. Bail bonds of appellant No.3 Arun Maruti Satpute stand cancelled. Fine, if paid by the appellants be refunded to them.

Appeal allowed.