Criminal Appeal No.105 of 2007

4th December, 2008

Petitioner Counsel: Shri. SHASHI P. DESHMUKH
Respondent Counsel: Shri. K. G. PATIL

Cases Cited:
Khushal Rao Vs. State of Bombay, 2008 ALL SCR (O.C.C.) 41 : AIR 1958 SC 22 [Para 14]
State of Punjab Vs. Parveen Kumar, 2004 AIR SCW 6897 [Para 15]

JUDGMENT

P. R. BORKAR, J. :- Appellant - Ashok s/o. Ajabsing Patil is challenging the order of conviction and sentence passed by the learned Adhoc Additional Sessions Judge, Jalgaon in Sessions Case No.205 of 2005 decided on 23-02-2007, whereby the appellant is convicted of offence punishable under Section 302 of the I.P.C. and sentenced to suffer imprisonment for life and to pay fine of Rs.500/-, in default, to undergo rigorous imprisonment for one month.

2. Brief facts giving rise to this case are as follows:-

Deceased Ratnabai had married the appellant seven years before the date of incident on 14-08-2005. She gave birth to son Jaydeep, who was about three years old. It is prosecution case that the appellant was addicted to liquor and used to ill-treat Ratnabai. On 14-08-2005, in the morning, the appellant is said to have poured kerosene on the person of Ratnabai and set her on fire. She was first taken to the Municipal Hospital, Pachora by her in-laws. A.S.I. Vasant Patil (P.W.8) recorded her statement in presence of the doctor. Ratnabai said that it was accidental fire. Accordingly, accidental death was registered. P.W.8-A.S.I. Patil who was P.S.O. also issued letter to Executive Magistrate - Somnath Patil (P.W.5) to record dying declaration of Ratnabai. Accordingly P.W.5-Somnath Patil recorded the dying declaration. In the said dying declaration Ratnabai stated that on that day i.e. 14-08-2005 in the morning she had taken her son for answering nature's call and at that time the child started crying and therefore Ratnabai scolded him. At that time the appellant came from the back door and gave her kick and also beat her. He also removed her Mangalsutra. At that time, the wife of brother of the appellant intervened, but the appellant could not be controlled by her. Thereafter, the appellant took Rs.10/- from his mother and went away. The appellant came back after sometime and poured kerosene on her person and set her on fire. The incident had taken place at 8.00 a.m. at the house.

3. P.W.3-Suresh Patil - brother of Ratnabai was informed about the incident and he came to the Municipal Hospital at Pachore. The doctor advised to take Ratnabai to the Civil Hospital as she was serious and accordingly Ratnabai was taken to the Civil Hospital, Jalgaon. P.I. Shinde (P.W.11) recorded statement of Ratnabai in the hospital and it is the second dying declaration wherein deceased Ratnabai involved the appellant and stated that he was responsible for her injuries.

4. The prosecution mainly wants to rely on two dying declarations; one recorded by the Executive Magistrate and another recorded by P.I. Shinde in the Civil Hospital, Jalgaon. It also relies on oral dying declaration given by deceased Ratnabai to her brother Suresh, after she was admitted in the Civil Hospital, Jalgaon.

5. Dr. Dipti Paighan (P.W.6) has performed post-mortem and she found 55% superficial deep burns as follows:-

Both hands - 15%, Chest - 9%, Abdomen - 9 %, Back - 18%, Face 4% = Total 55%

P.W.6-Dr. Paighan came to the conclusion that the cause of death was hyporolumic shock due to burns (55%).

6. The defence of the accused is that it is an accidental fire in which deceased Ratnabai had sustained injuries.

7. P.W.8-A.S.I. Vasant Patil is examined at Exh.36 and he stated that on 14.08.2005 he was Police Station Officer from 8.00 a.m. to 2.00 p.m. He received memo from the Rural Hospital, Pachora that one Ratnabai Ashok Patil was admitted with burn injuries and necessary action be taken. On the basis of that Memo (Exh.37), he sent a letter to the Executive Magistrate, Pachora for recording dying declaration. He personally went to the Rural Hospital, Pachora to record statement of Ratnabai. He recorded statement of Ratnabai in presence of the Medical Officer. He proved the statement (Exh.38). On the basis of said statement he recorded A.D. No.99 of 2005 and thereafter handed over further investigation to A.P.I. Shinde. As per this statement, which was earliest in time, Ratnabai has stated that she was residing with her husband, mother-in-law and son at village Lajgaon, Tq. Pachora. On 14.08.2005 she got up. Since, there was darkness in the house, she lighted kerosene oil lamp and thereafter completed other morning chores including bath. By that time other members of the family had got up. Jaydeep, three years aged son wanted biscuit. Her husband - appellant was taking bath and she was preparing tea. At that time Jaydeep climbed on a wooden stool for taking a pack of biscuit from the rack and at that time accidently the burning oil lamp fell down on the person of Ratnabai and she sustained injuries. It was about 6.00 a.m. She sustained injuries on her hands, chest, belly and neck. She raised shouts. At that time her husband, mother-in-law and neighbours came running and they admitted her for treatment in the hospital. She sustained accidental burn injuries. She had no complaint against anyone. Said statement bears endorsement that patient was conscious and fit to give statement. Though endorsement is there, it does not appear that there is any signature below the endorsement.

8. The learned advocate for the appellant pointed out to us that P.W.1-Dayaram Patil is a panch witness who signed on the panchanama of the spot of incident. He stated that police seized burnt cloth pieces from the place of incident. He identified his signature on the panchanama. At the time of panchanama the victim was admitted in the hospital at Pachora. The witness denied that police seized kerosene can and match box from the spot. This witness was declared hostile and learned A.P.P. was permitted to put questions in the nature of cross-examination. In the cross-examination the witness stated that there was no single window to the house of the accused and there is always darkness. There is rack on the Southern side of the house. There was one pot containing tea on the furnace (Chulah). There was also one wooden stool and one big oil lamp. A pack of biscuit was lying there. So, it is argued that the dying declaration recorded by A.S.I. shinde should be accepted.

9. It is also stated that if it was a case of homicide, then there would have been injuries even below waist. It appears from the inquest panchanama Exh.40 and post-mortem notes Exh.13, that there was no injuries below waist. It is argued before us that two dying declarations Exh.27 and 53 are materially different as to how the incident has occurred. As per dying declaration Exh.27 recorded by the Executive Magistrate, deceased Ratnabai had taken her son for answering natures call and due to his crying, she scolded the son. At that time the appellant came from behind, gave her kick and also beat her. He snatched her Mangalsutra. He took Rs.10/- from his mother and went away. Thereafter, he came back and poured kerosene on Ratnabai and set her on fire.

10. As per dying declaration Exh.53 recorded by P.I. Shinde in the Civil Hospital, Jalgaon, on 14.08.2005 at 7.00 a.m. Ratnabai was persuading her husband/appellant not to drink liquor. At that time on saying so, the appellant had beaten Ratnabai and so she started weeping in the house. At that time the appellant went away taking Rs.10/- and after sometime he came back, poured kerosene from plastic can on her person and then set her on fire. Thereafter, her brother-in-law's wife and others came and extinguished fire and she was shifted to hospital.

11. There is material difference regarding how the incident occurred. Prelude i.e. sequence of events leading to the incident are necessarily different so far as Exh.27 and 53 are concerned.

12. So far as oral dying declaration to P.W.3-Suresh is concerned, according to him he asked about incident to Ratnabai in the Civil Hospital and Ratnabai told him that in the morning her mother-in-law and appellant had beaten her. Thereafter, her mother-in-law went out with the son and Ratnabai was weeping in the house. Thereafter, the appellant took Rs.10/- from Ratnabai and went out and came back after consuming liquor and then he poured kerosene and set her on fire. So, this is still another story, which is not consistent with the two dying declarations. It is difficult to reconcile oral dying declaration made to P.W.3-Suresh with the dying declarations Exh.27 and 53. It is possible that Exh.53 and oral dying declaration may be perhaps tutored because they were recorded after relatives from maternal side had met Ratnabai.

13. But, question arises why the first dying declaration recorded by A.S.I. Patil in the Municipal Hospital, Pachora which is proved at Exh.38 and which speaks about accidental burns should be discarded. In this case the dying declarations at Exh.38 and 53 and the oral dying declarations are materially different and they cannot be reconciled. They are consistent only about the ultimate act of pouring kerosene and setting fire had taken place. No independent witness is examined. No neighbour or other person who had come to the spot immediately after the incident is examined.

14. The learned advocate for the appellant has cited several authorities. As held in para 17 of Khushal Rao Vs. State of Bombay, AIR 1958 SC 22 : [2008 ALL SCR (O.C.C.) 41], Court can rely on dying declaration if it comes to the conclusion that the dying declaration was truthful version as to the circumstances of the death and the assailants of the victim and there would not be further question of corroboration. In order to pass test of reliability, the dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement is made in absence of the accused, who had no opportunity of testing the veracity of the statement by cross-examination. If the Court after examining the dying declaration in all its aspect and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from infirmity, then, without corroboration it cannot form the basis of a conviction.

15. In this case we find that deceased Ratnabai had given different versions of the incident before different persons. It is difficult to reconcile them. They cannot be said to be consistent in material particulars. In the case of State of Punjab Vs. Parveen Kumar, 2004 AIR SCW 6897, versions in two dying declarations were quite different and not consistent with each other and there was no corroborative evidence. It is observed that merely because in the two different versions one name is common, that cannot be a ground for convicting named person. In this case there are inconsistent dying declarations. There is no corroboration from any independent source and in the circumstances we prefer to give benefit of doubt to the appellant.

16. In the result the appeal is allowed. The order of conviction and sentence passed by the learned Adhoc Additional Sessions Judge, Jalgaon, is hereby set aside. The appellant is acquitted of the offence punishable under Section 302 of the I.P.C. The appellant be set at liberty, if not required in any other crime. Fine, if paid, be refunded to him.

Appeal allowed.