Criminal Appeal No.1308 of 2003,Criminal Appeal No.1271 of 2003

21st July, 2009

Petitioner Counsel: Mr. H. H. PONDA
Respondent Counsel: Mr. K. V. SASTE

Cases Cited:
Samadhan Dhudhaka Koli Vs. State of Maharashtra, 2009 ALL MR (Cri) 229 (S.C.) [Para 13]

JUDGMENT

BILAL NAZKI, J.:- These two appeals are being disposed of by this common judgment as the appeals have been filed against the same judgment of the learned Additional Sessions Judge, Greater Mumbai, in Sessions Case No.24 of 1993 dated 18th October, 2002 by which they were convicted. All the three appellants in two appeals are convicted under section 302 read with section 34 of Indian Penal Code. All of them have been sentenced to imprisonment for life and fine of Rs.5,000/- each in default of fine, they have to undergo further imprisonment of six months.

2. The appellants in both these appeals are father, son and daughter. The deceased was the wife of the son. It was the case of the prosecution that when accused returned to their home, the deceased was in home making Chapati on a burning stove. In a moment of anger, accused No.1 threw the stove on the body of the deceased, namely, Yasmin. She sustained burn injuries and later succumbed to death. It was also alleged that the neighbours tried to extinguish the fire, and other accused remained a moot spectators. On the basis of this report charges were framed. Accused pleaded not guilty and claimed to be tried.

3. Prosecution examined 10 witnesses in all and pressed into service almost half a dozen dying declarations. The case is mainly based on these dying declarations. There is no evidence, either to corroborate a dying declaration favouring accused or a dying declaration favouring the prosecution. Before coming to these dying declarations, it will be pertinent to refer to the evidence which was laid by the prosecution before the trial Court.

4. P.W.1 Indramani Ranmani Dube is the S.E.M., who appears to have recorded the first dying declaration. She stated that on 14th April, 1992 one police van from Dahisar police station arrived at her residence. She was informed that she was to visit Bhagwati Hospital as somebody wants to make a statement. She went there in a police van and reached at about 11.15 pm. She visited the ladies ward. She had to wait for some time as doctor was busy. She enquired the name of the patient who disclosed her name as Yasmin Amin Charania. She also disclosed her address. Also disclosed that she was staying along with her husband, her father-in-law and sister-in-law in the same house. She said that she was cooking Chapati on a stove at around 8.00 p.m. on 14th April, 1992. The stove was not working. She exhibited Exh.9, which is the Dying Declaration. The witness identified the statement. She also identified the signature of Yasmin as well as her thumb impression. In this statement, the deceased said that the stove was not working properly. She lighted it with a match stick. The stove caught wild fire, by which she also caught fire. Her mother-in-law, sister-in-law and husband were present in the house. They heard her cries, came immediately, put a chaddar on her. She stated that on 15th April, 1992 one police van again came to call her. She was informed that she was to record another statement of Yasmin Amin Charania. At around 4.15 a.m. on 15th April, 1992 they reached at Bhagwati Hospital and she proceeded to Ladies Ward. She enquired with Yasmin whether she wanted to make any further statement. Yasmin made further statement that on 14th April, 1992, she along with her husband, sister-in-law, and father-in-law went to market for purchasing vegetables. While returning home she went to visit a Tailor and her husband and sister-in-law went to residence. On reaching home, Yasmin enquired with her husband as to why he left early. Thereupon the quarrel took place between them. Her husband assaulted her, her sister-in-law also assaulted her. Yasmin further stated that when she was cooking Chapati on the stove at about 9.30 p.m. on 14th April, 1992, her husband and sister-in-law entered into the kitchen room. Both of them assaulted Yasmin. Thereafter, the husband gave a kick to the lighted stove. The stove came on her body and she sustained burn injuries. Thereafter, immediately she came out of the kitchen and entered in the room which was situated in front of the kitchen. She was crying and shouting at that time. Thereafter, her husband wrapped a chaddar on her body. She continued to cry. Due to that, the neighbours gathered there. Thereafter, there was a quarrel between the neighbours and her husband. The neighbours moved Yasmin to the Bhagwati Hospital. She disclosed that she was not knowing the neighbour who brought her to Bhagwati Hospital. Yasmin also disclosed in her second statement that her husband threatened her to give Talak (divorce) if she disclosed the correct account of the incident, therefore, she had made the earlier declaration. Whatever statement was made by her on 14th April, 1992 was not the correct statement, and now she made the correct statement.

5. It may be pertinent to note that when the first dying declaration was recorded by this witness on 14th April, 1992, this witness has obtained the signature of Yasmin on the said dying declaration and also obtained her thumb impression as well as the endorsement of the doctor. But, she did not find it fit to obtain again endorsement at the time of recording second dying declaration, as there was time gap of approximately five hours in between the first dying declaration and the second dying declaration.

6. P.W.2 Mrs. Banubai N. Batliwala is the mother of the deceased. She stated that she had three daughters and four sons. The deceased was married 10 years before with Amin, accused No.1. There was a demand in the past of dowry of Rs.50,000/-. Interestingly, she stated that the demand of Rs.50,000/- was made one day prior to the occurrence. There is no mention that any such demand was made for 10 years after accused No.1 was married to the deceased. She was informed by the police that Yasmin was set on fire by their in laws. At that time she was staying with her mother-in-law, father-in-law, husband, brother-in-law and brother's wife. Her husband's sister was coming of and on. She stated that when she reached the hospital to meet her daughter, Yasmin informed her that while making Chapati, her husband threw the stove on her in the company of the other family members, namely, father-in-law, mother-in-law and husband's sister. When she was set on fire all the family members bolted the door so that nobody should come to her rescue.

7. P.W.3 Karna Padamanbha Amin is the neighbour who turned hostile. P.W.4 Anil Dharmaji Mane was the police constable stationed at Bhagwati hospital at the relevant time and date. He has stated that at about 10.45 pm. a lady came to the hospital and stated that she was burnt on account of blast in the stove. The said aspect was recorded by him and thereafter he contacted the SHO at the police station. At about 2.45 am. during the said night, she desired to make a statement and therefore requested him to call the duty officer immediately. He therefore contacted the duty officer of Dahisar Police Station and gave him the message. The officers Shingal and Patil came to the hospital and took charge of the matter. A diary entry about it was made on 17.5.94 which was marked as Exh.16.

8. P.W.5 Manohar Krishna Gharge is a panch witness who was declared hostile. P.W.6 Karunakar P. Shetty is a neighbour, who also turned hostile. P.W.7 Rajaram N. Marathe is a doctor who conducted the Post-mortem and found that the deceased had 82% burns and the cause of death according to him was septicemic shock due to burn injuries.

9. P.W.8 Sampatrao Shamrao Patil is the Police Sub-Inspector. He stated that Amin Ali and Pyar Ali came to the police station along with others and stated that a lady by name Yasmin Amin Ali was burnt. He went to the spot with his staff. The injured was shifted to Bhagwati hospital before their arrival. Thereafter, he went to Bhagwati hospital. The statement of the lady was recorded at the hospital. She pointed out that her sari caught fire while cooking. Her statement was recorded. This statement was marked at Exh.10. The S.E.M. was called and she also recorded the version of deceased. This witness returned to the police station, but he was called back to the hospital as Yasmin desired to make further statement. Accordingly, he went to Bhagwati Hospital and recorded her statement. She informed him that on flimsy dispute she was being assaulted by her husband, father-in-law and sister-in-law. She also told that on 14th April, 1992 she had gone to market for shopping and on return she was assaulted by sister-in-law. Thereafter her husband and father-in-law also assaulted her and at about 9.30 pm. while the assault continued she fell down and as the stove was kicked by her husband, it came in contact with her. She started shouting for help. The fire was sought to be doused by the husband and she was taken to the hospital by one Raju from their building. She resiled her first statement which was given on account of apprehension in her mind about further assault and/or Talak. The same was recorded as F.I.R., and C.R. was registered. He also obtained the endorsement of the doctor.

10. P.W.9 Dr. Manmohan Madhukar Kamat is the Doctor who examined the deceased at about 11.45 pm. She told the doctor that this was a case of accidental burns. P.W.10 Kisan Narayan Shengal is the Investigating Officer who completed the investigation and filed charge-sheet.

11. Now we consider dying declarations. The first three dying declarations in point of time pointed out that the deceased had got fire accidentally. The first one was made to the police officer who was stationed in the Hospital. The second one was made to the doctor who examined her and the third one was made to the S.E.M. when she recorded the first statement. Thereafter, it appears that the police arrived at the scene and another two further statements were made, one to the S.E.M. and one to the police officer. We fail to understand at the first instance that when the deceased had made a statement on reaching the hospital and her husband and father-in-law had gone to the police station and reported the matter to the police inspector, why was not any case registered at that point of time. It was around 11.30 pm. to 11.45 pm. according to the prosecution when the deceased reached the hospital when she reported the matter to a policeman stationed in the hospital and almost at the same time her husband and father-in-law, who are accused, went to the police station. Thereafter, between 11.45 pm. to 12.00 midnight S.E.M also recorded the statement of the deceased, but no F.I.R. was registered. The F.I.R. was registered only after the second dying declaration was recorded by the S.E.M. After recording of the second dying declaration by the S.E.M., the police inspector examined the deceased and registered this statement as F.I.R. This procedure itself creates many doubts which have not been explained by the prosecution. In the second set of dying declaration an attempt is made to explain making of authenticity of declaration. The explanation is, she was threatened by her husband, that she would be given Talak even if she survives, if she made a statement against her husband. This has also been accepted by the learned Sessions Judge and the learned Sessions Judge was of the view that this could explain later dying declarations. Certain interpolations were also noted by the learned Sessions Judge, but he found that these interpolations could not help the defence. We feel that the conclusion drawn by the learned Sessions Judge was based on conjectures.

12. Dying declarations are important piece of evidence. These are statements made by a person immediately before his death with regard to the circumstances which may lead to his death. These statements are important in case the person dies, who makes such statements, and obviously, after the death of the person, the accused does not get any chance to even cross-examine the dead person. Courts have believed that dying persons would not tell a lie, and, therefore, Courts have convicted solely on the basis of Dying Declarations. The accused have been convicted solely on the basis of the Dying Declarations. The Dying Declaration should inspire confidence of the Court and the Court should be satisfied that such a declaration had been made voluntarily and should have been made uninfluenced. The Courts have also maintained that the deponent at the time of making such a declaration should be in a fit state of mind. If there is one Dying Declaration or there are number of Dying Declarations which are consistent with each other, then the Court is only required to examine whether such Dying Declaration had, in fact, been made and had been made voluntarily. But when there are number of Dying Declarations which are contradictory to each other and it cannot reconcile to each other, the task of the Court becomes much more difficult. One of the ways to accept one version as against another version given in a Dying Declaration is to find the corroborative evidence. In the present case, we have not found any corroborative evidence either to come to a conclusion that the Dying Declaration indicting the accused was true or the Dying Declarations which exonerated the accused were true. There are half a dozen Dying Declarations in this case. In three of them, she stated that her catching fire was extinguished. In one Dying Declaration, she blamed her husband, her father-in-law and her sister-in-law, and yet, in two other Dying Declarations, she stated that her husband gave a kick to the lighted stove, which fell on her. The generally accepted law is that when there are two Dying Declaration which are contrary to each other, and are not compatible with each other, then convicting a person would be hazardous.

13. In Samadhan Dhudhaka Koli Vs. State of Maharashtra, reported in 2009 ALL MR (Cri) 229 (S.C.), the Supreme Court laid down as under :

"15. A Judgment of conviction can be recorded on the basis of a dying declaration alone, but the court must have been satisfied that the same was true and voluntary. Indisputably, for ascertaining the truth as regards the voluntariness of making such a dying declaration, the court is entitled to look into the other circumstances but the converse may not be true. It is not a case where the deceased and appellant were living separately. It is also in dispute, and as would appear from the statements made by the deceased in her first dying declaration that, even on the night in question appellant was not in the house; she was brought to the hospital by her husband and his family. If the intention of the appellant was to cause death to her, the fire would not have been extinguished by his family members.

16. Consistency in the dying declaration, therefore, is a very relevant factor. Such a relevant factor cannot be ignored. When a contradictory and inconsistent stand is taken by the deceased herself in different dying declarations, they should not be accepted on their face value. In any event, as a rule of prudence, corroboration must be sought from other evidence brought on record."

14. In view of the law explained hereinabove, we feel that it will not be safe to rely on the Dying Declarations, by which the deceased blamed the accused persons. There is no other evidence on record which could warrant conviction of the accused.

15. We therefore disbelieve the case of prosecution and pass the following order :

:: O R D E R ::

i. Both the Appeals are allowed.

ii. We set aside the order of conviction and sentence passed by the Additional Sessions Judge, Mumbai in Sessions Case No.24 of 1993 against the Appellant-original accused No.1, Amin Pyarali Bhimjibhai Charniya, in Criminal Appeal No.1308 of 2003 and Appellant-original accused No.2, Pyarali Bhimjibhai Charniya, and Appellant-original accused No.3, Smt. Dilshad Abunaker Mansuri, in Criminal Appeal No.1271 of 2003.

iii. In the light of the above discussion, the convictions will have to be set aside and same are accordingly set aside.

iv. We hereby direct that the Appellant, original accused No.1 Amin Pyarali Bhimjibhai Charniya, who is in jail, be released forthwith, if not required in any other case. We also direct that the bail bonds of the appellants, accused Nos.2 and 3, namely, Pyarali Bhimjibhai Charniya and Smt. Dilshad Abunaker Mansuri, shall stand cancelled.

v. Fine amount, if paid, be returned back to the respective appellants.

Appeals allowed.