Criminal Appeal No.461 of 2009

4th October, 2010

Petitioner Counsel: Mr. JOYDEEP CHATTERJI
Respondent Counsel: Mr. N. R. SHAIKH

Cases Cited:
State of Punjab Vs. Parveen Kumar, AIR 2005 SC 1277 [Para 8]
Suresh s/o. Arjun Dodorkar Vs. State of Maharashtra, 2005 ALL MR (Cri) 1599 [Para 9]
Maniben w/o. Danabhai Tulshibai Maheria Vs. State of Gujarat, 2007 ALL MR (Cri) 2035 (S.C.)=AIR 2007 SC 1932 [Para 13]
B. Shashikala Vs. State of Andhra Pradesh, 2004 ALL MR (Cri) 887 (S.C.)=AIR 2004 SC 1610 [Para 14]
P. V. Radhakrishna Vs. State of Karnataka, 2003 ALL MR (Cri) 1792 (S.C.)=AIR 2003 SC 2859 [Para 15]

JUDGMENT

P. V. HARDAS, J.:- The appellants, who stand convicted for offence punishable under Section 302 read with section 34 of the Indian Penal Code and sentenced to imprisonment for life and to each pay fine of Rs.1,000/- with a default condition of undergoing simple imprisonment for two months in the event of non payment of fine, by the Additional Sessions Judge, Dhule, by judgment dated 21.8.2009, by this appeal question the correctness of their conviction and sentence.

2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus.

P.W.4 Yashwant Patil, Executive Magistrate, received a requisition on 3.10.2008 for recording the dying declaration of Motanbai, who was admitted in the hospital at Shirpur with burns. He accordingly contacted the Medical Officer, P.W.6 Dr. Kailassing Rajput and requested the Medical Officer to ascertain the condition of injured Motanbai to give her statement. On the Medical Officer certifying that Motanbai was in a fit condition to give her statement, he recorded the statement, i.e. the dying declaration of Motanbai at Exh.30. It appears that on the same day he also recorded the dying declaration of P.W.3 Sanjay, who was also injured. The statement of Motanbai was recorded at 10.00 a.m. P.W.2 Police Head Constable Arun Patil was attached to the Shirpur Police Station and who was posted on duty at the cottage hospital at Shirpur, was asked by communication at Exh.21 to record the statement of Motanbai and her husband Sanjay, who were both admitted in the hospital. He accordingly contacted P.W.6 Dr. Kailassing Rajput and the doctor certifying that Motanbai was in a fit condition to record her statement, he recorded the statement of Motanbai at Exh.22. On the basis of the statement of Motanbai at Exh.22, an offence came to be registered at the Shirpur police station vide Crime No.287/2008 for offence punishable under Section 307 read with section 34 of the Indian Penal Code against the appellants. It appears that injured Motanbai, who was admitted in the hospital with burns on 3.10.2008 succumbed to her injuries on 4.10.2008 at 4.35 a.m.. On registration of the offence punishable under Section 302 of the Indian Penal Code, the investigation of the said crime was entrusted to P.W.8 P.S.I. Uttam Sonawane who was attached to the Shirpur police station. He accordingly proceeded to village Balkuwa and drew the scene of the offence panchanama at Exh.14 in the presence of witnesses and from the scene of the offence he seized burnt saree pieces, blouse, shirt and pant. He also drew the sample of kerosene mixed soil and control soil. Thereafter he recorded the statements of witnesses and arrested the accused on the same day vide arrest panchanama of the accused at Exh.39. Clothes on the person of the accused came to be seized under the said panchanama. On death of Motanbai, inquest panchanama came to be drawn in the presence of two panchas and thereafter requisition at Exh.42 was given to the Medical Officer for performing the post-mortem examination. Post-mortem on the dead body of deceased Motanbai came to be performed by P.W.6 Dr.Kailassing Rajput, who was a Medical Officer at the Shirpur Cottage Hospital. He noticed that deceased Motanbai had sustained 79% burns and he opined that cause of death was due to shock due to cardio respiratory failure due to extensive deep 79% burn injuries. The post-mortem report is at Exh.33. On the next day, i.e. on 5.10.2008 during custodial interrogation accused Kamalbai expressed her willingness to point out the place where a can of kerosene was concealed. Accordingly, memorandum at Exh.40 came to be recorded in the presence of P.W.7 Nirmalabai. Accused Kamalbai took the Police and the panchas to her house and produced a plastic can kept under the stool from the Western corner of the house. The aforesaid can came to be seized under the panchanama at Exh.40/A. The seized articles were referred to the Chemical Analyzer vide requisition at Exh.16. The report of the Chemical Analyzer is at Exh.45. Further to the completion of investigation a charge-sheet came to be submitted against the appellants.

3. On committal of the case to Court of Sessions, charge vide Exh.4 came to be framed against the appellants for offence punishable under Section 302 read with section 34 of the Indian Penal Code. Original accused No.1 Kamalbai is the mother-in-law of deceased Motanbai while original accused No.2 Rajendra and original accused No.3 Sunandabai are the brother-in-law and sister-in-law of deceased Motanbai, respectively. The trial Court accepted the evidence of the prosecution and convicted and sentenced the appellants as aforestated.

4. In order to appreciate the arguments advanced before us by the learned Counsel for the parties, it would be useful at this juncture to refer to the evidence of the prosecution witnesses. The entire prosecution case revolves around the two dying declarations at Exh.30 and Exh.22 and the oral dying declaration alleged to have been made to P.W.5 Sushilabai, mother of deceased Motanbai.

5. P.W.4 Yashwant Patil, Executive Magistrate recorded the first dying declaration at Exh.30. In Exh.30 injured Motanbai states that on the day of the incident she was cooking on the hearth at about 7.00 a.m. She further states that her mother-in-law Kamalbai on the pretext of filling water from the water tap picked a quarrel with her and began abusing her loudly. She also states that her husband P.W.3 Sanjay, her brother-in-law Rajendra and her sister-in-law Sunandabai were present there but instead of settling the quarrel, they encouraged her mother-in-law. She states that her mother-in-law Kamalbai went inside the house and brought a tin containing kerosene oil and poured the same on her person and with a burning firewood from the hearth she set Motanbai ablaze. She further states that at that time her husband, her brother-in-law and her sister-in-law were only silent spectators. In the dying declaration recorded at Exh.22 she states about an earlier instance where she had conceived for the first time but as her mother-in-law assaulted her on her stomach with a broom, Motanbai had given birth to a child who was stillborn. In respect of the incident she states in Exh.22 that on the day of the incident at 7 O'clock since there was water in the tap and she was cooking, she requested her husband to fix a pipe to the tap and fill the water. On that her brother-in-law Rajendra declined to permit them to do so on the ground that it was a tap of the community. On that her mother-in-law, her brother-in-law Rajendra and sister-in-law Sunanda began abusing her filthily by referring to her mother. She states that at that time her husband P.W.3 Sanjay was present. Thereafter her mother-in-law Kamalbai went inside the house and brought a container of kerosene and poured the kerosene on her person as well as on the person of her husband and her mother-in-law took the burning firewood from the hearth and set Motanbai ablaze. She further states that she was held by her brother-in-law Rajendra and his wife Sunanda. She also states that her husband had rushed to save her but on account of kerosene on his person, his clothes also caught fire.

6. Perusal of both the dying declarations would show that there is not just variance in the two dying declarations but there are major contradictions. In respect of prelude to the incident Motanbai in Exh.30 states that her mother-in-law quarreled with her on account of filling water from the tap and her husband, her brother-in-law and her sister-in-law encouraged her. She further states that when she was set ablaze by her mother-in-law, her husband, her brother-in-law and her sister-in-law were silent spectators. In the dying declaration at Exh.22 she states that it was her brother-in-law, who quarreled with her and thereafter her mother-in-law, her brother-in-law and her sister-in-law filthily abused her. She then states that kerosene was poured on her husband and her husband while attempting to save her had sustained burns. She further states that she was held by her brother-in-law and her sister-in-law. The only common thread in these two dying declarations is that her mother-in-law poured kerosene on her and set her ablaze.

7. Prosecution has examined P.W.3 Sanjay, husband of deceased Motanbai who states that on the day of the incident she had ignited the hearth and was cooking and her saree fell on the burning firewood and had caught fire. He states that he was outside the room and the container containing the kerosene tripped because of Sanjay and the kerosene fell on Motanbai and that increased the flames. He states that he had also sustained burns. He was cross-examined on behalf of the prosecution and portions marked "A" and "B" were put to him from his statement recorded during investigation. The dying declaration of P.W.3 Sanjay was recorded by the Executive Magistrate and since Sanjay did not succumb to the injuries it would not amount to a dying declaration within the meaning of Section 32(1) of the Evidence Act and it would at the most amount to a previous statement. We may at this juncture state that the so called dying declaration of Sanjay was in consonance with his deposition before the Court.

8. Be that as it may, it is apparent to us that the two dying declarations namely Exh.30 and Exh.22 are contradictory dying declarations. Mr. Chatterji, learned Counsel for the appellants has invited our attention to the judgment of Supreme Court in State of Punjab Vs. Parveen Kumar, AIR 2005 SUPREME COURT 1277. The Supreme Court at paragraph 8 has held thus :

"8. It will thus, appear that so far the first dying declaration is concerned, there is no allegation against either the mother-in-law, father-in-law or the sister-in-law and the allegation is solely against the respondent, who is said to have sprinkled kerosene oil on her and set her on fire. In the second dying declaration, the allegation is that the mother-in-law sprinkled the kerosene oil and the husband set her on fire with a match stick. While they were doing so, her father-in-law and sister-in-law were exhorting them to do away with her by setting her on fire. These two versions are quite different and not consistent with each other, except that so far as the respondent is concerned, the act of lighting the fire is ascribed to him in both the dying declarations."

9. Learned Counsel for the appellants has also invited our attention to the Division Bench judgment of this Court in Suresh s/o. Arjun Dodorkar Vs. State of Maharashtra, 2005 ALL MR (Cri) 1599 in which the Division Bench at paragraph 9 has held thus :

"9. A perusal of both the dying declarations reveal that there are inter se variance. In the dying declaration at Exh.24 Vimal had stated that the appellant, under the influence of liquor, used to beat her as he was of suspicious nature. She states that when she had asked him to take his dinner, the appellant had quarreled with her and, therefore, in anger she had gone to sleep. While she was asleep, the appellant had poured kerosene on her and had set her ablaze. In the dying declaration at Exh.27 Vimal had stated that in the evening she had sent the daughter of her neighbour for purchasing wheat, but as the said girl had not gone, she had herself gone and purchased wheat. According to her, the appellant, on his return, asked her as to why she had gone for purchasing wheat and what was the relationship between Vimal and the shopkeeper. The appellant then went out of the house and returned back at about 7.00 or 7.30 p.m. carrying a small plastic can of kerosene. Vimal has asked her husband to take his dinner but her husband had said that he would not eat anything prepared by her as she was of loose character. On so saying her husband poured kerosene on her and set her ablaze. It would thus be seen that in respect of the incident there is a major variance though there is a common thread in both the dying declarations that it was the appellant who had set her ablaze. In cases resting on multiple written dying declarations, the courts cannot pick and choose any one dying declaration. All the dying declarations have to be consistent in respect of material aspects of the incident. According to us, consistency is expected in multiple dying declarations in respect of the names and the number of accused, the prelude to the incident and the incident itself. In these two dying declarations there is consistency in respect of the name and the number of accused. However, in respect of the prelude to the incident, there is variance. There is also variance in respect of the incident itself. The variance is apparent on perusal of the dying declarations and can be discerned from the perusal of the same. Therefore, according to us, no reliance can be placed on the two written dying declarations at Exhs.24 and 27, as acceptance of any one dying declaration necessarily renders the other as false. If in the dying declaration the truthfulness of the narration itself is rendered doubtful, no reliance whatsoever can be placed on the dying declaration. Merely because the overt act attributed to the accused is consistent in both the dying declarations would not make the dying declarations a reliable piece of evidence. The dying declaration has to pass all the tests of reliability as the declarant is not available for cross-examination. In cases where there are multiple dying declarations and acceptance of one dying declaration falsifies the other, the dying declarations have to be necessarily rejected. In our opinion, therefore, no reliance can be placed on the dying declarations at Exhs.24 and 27."

10. It would be apparent that prelude to the incident is different in both the dying declarations and there is contradiction in respect of the incident itself. In the dying declaration at Exh.30 Motanbai does not ascribed any overt act to her brother-in-law and her sister-in-law while in the dying declaration at Exh.22 she ascribes them the overt act of holding her. We thus find that there is not just variance in the two dying declarations but the two dying declarations are contradictory to each other. Acceptance of one dying declaration necessarily renders the other as false. In such circumstances, it would be wholly impermissible for the Court to pick and choose any one dying declaration to suit the prosecution case. In cases resting on multiple dying declarations the Courts expect consistency in respect of the crux of the facts leading to the incident. Mere repetition of allegations against one of the accused would not render both the dying declarations acceptable.

11. Apart from this we further find that P.W.4 Yashwant Patil who had recorded Exh.30 states that Motanbai was speaking in Ahirani while P.W.2 Police Head Constable Arun Patil states that intermittantly Motanbai was speaking in Ahirani. Both the witnesses do not state that they are conversant with Ahirani and whether Ahirani is a dialect spoken in that region. The dying declaration does not contain any certificate that the dying declaration has been translated in Marathi from Ahirani. In the absence of such evidence, it cannot be said that the dying declarations have passed all the tests and that the said dying declarations are pieces of evidence, which would inspire the confidence of the Court for their acceptance.

12. In respect of the oral dying declaration, we find that P.W.5 Sushilabai, mother of deceased Motanbai states that she had reached the hospital and the deceased had informed her as per the dying declaration at Exh.22. In cross-examination she has admitted as true that she had reached the hospital at 8.30 to 9.00 a.m. and the statement of Motanbai had been recorded prior to her visit. She further states that she along with her husband were sitting with Motanbai till her death. She has admitted that it did not happen that after her visit the Police and the Executive Magistrate had recorded the statement of Motanbai. She states that on that day she did not meet the Police. Assuming that this witness is an illiterate lady and, therefore, is unable to state the exact time, yet if Motanbai had made disclosure to her prior to the recording of her dying declaration, it is extremely curious that this witness who is mother of Motanbai would not inform the Police. Another aspect of the matter is that if indeed Motanbai had made disclosure to this witness in consonance with the recitals of Exh.22, she would make a contradictory dying declaration at Exh.30. For the aforesaid reasons, therefore, we find that no reliance whatsoever can be placed on the testimony of this witness in respect of the oral dying declaration alleged to have been made by Motanbai to this witness.

13. The learned Assistant Public Prosecutor has placed reliance on the judgment of Supreme Court in Maniben w/o. Danabhai Tulshibai Maheria Vs. State of Gujarat, AIR 2007 SUPREME COURT 1932 : [2007 ALL MR (Cri) 2035 (S.C.)], particularly at paragraph 11 of the said judgment, which reads thus :

"11. The burn injuries were caused by kerosene as is also evident from the Report of the Forensic Science Laboratory (Ext.73). It may be true that the deceased gave her statement about the cause of her suffering injuries at about 12.45 in the morning before Dr. Ashish, but she gave her statement also before the Magistrate. Admittedly, there is no discrepancy in regard to the involvement of the appellant vis-à-vis her son Girishbhai. The only discrepancy which has been pointed out by Mr. Raichura was that in some of her statements, she had not stated the actual overt act played by appellant herein. In these statements, she merely had answered the questions put to her by different persons. When questions are put differently, answers would also appear to be different. On a first glance, it may appear that the detailed description of the offence is missing, but in our opinion the statement of the deceased must that she had involved both the accused in all her statements. Only because her husband had rushed to the hospital upon hearing the news, the same would not mean that the deceased was tutored by him. A son would not falsely implicate his mother, despite their bitter relationships. Furthermore first disclosure in regard to the cause of the incident having been attributed upon her brother-in-law and the appellant, it is unlikely that the same was tutored by her husband. She was an educated lady, she had studied upto the second year of graduation. The very fact that the appellant and her son had developed ill-relations with the deceased and her husband is an indicator to show that why the incident had taken place. The presence of the appellant at the house at the relevant time is not disputed. Also, the involvement of Girishbhai has not been disputed."

In this case before the Supreme Court there were some discrepancies in respect of the overt act attributable to the appellant before the Supreme Court. In the background of the facts of the said case, the Supreme Court had held at paragraph 11. In the present case the two dying declarations are contradictory inasmuch as not only is there a contradiction in respect of prelude to the incident but there is contradiction in respect of the incident itself. In such circumstances, therefore, according to us the ratio laid down by the Supreme Court in the said judgment would not apply to the facts of the present case.

14. The learned Assistant Public Prosecutor has further placed reliance on the judgment of Supreme Court in B. Shashikala Vs. State of Andhra Pradesh, AIR 2004 SUPREME COURT 1610 : [2004 ALL MR (Cri) 887 (S.C.)]. In the said judgment before the Supreme Court the Medical Officer had asked questions to the deceased in Hindi and thereafter translated them in English and the Magistrate had accordingly recorded the same as dying declaration. The Supreme Court found that the doctor and the Magistrate were knowing workable Hindi though they could not read, write or speak. In such circumstances, therefore, the Supreme Court held that there was no infirmity in the dying declaration. In the present case there is no evidence whatsoever that P.W.2 Arun Patil and P.W.4 Yashwant Patil were knowing Ahirani and there is no endorsement or certification that the dying declaration is true translation in Marathi from Ahirani. This according to us is another infirmity which impels us to reject the two dying declarations at Exh.22 and Exh.30. The learned Assistant Public Prosecutor points out to us that the report of the Chemical Analyzer at Exh.45 clearly shows the presence of kerosene on the clothes of the accused. Apart from the fact that there is no contemporaneous evidence in respect of sealing of the clothes, the contents of the report of the Chemical Analyzer at Exh.45 have not been put the accused in their statement recorded under Section 313 of the Code of Criminal Procedure. All that is put to the accused in their statement under section 313 of the Code is reproduced below :

"15. It has further come in her evidence that he has sent the muddemal to Chemical Analyzer and the Chemical Analyzers report is at Exh.45. What you have to say ?

Ans. : It is false."

The contents of the report of the Chemical Analyzer have not been put to the accused and, therefore, their failure to account for presence of kerosene would not in any manner strengthen the prosecution case. Further the report of the Chemical Analyzer does not show as to on which part of the clothing kerosene was detected. If undisputedly kerosene was found on the floor as P.W.3 had tripped the container of kerosene, presence of kerosene on the clothes of the accused would be natural as they are residing in the same house. So also presence of the accused at the time when deceased Motanbai caught fire is also natural, in the sense that their presence is not unnatural and would not necessarily lead to an inference about their complicity in the crime.

15. It would be well to remember that the Supreme Court in P. V. Radhakrishna Vs. State of Karnataka, AIR 2003 SUPREME COURT 2859 : [2003 ALL MR (Cri) 1792 (S.C.)] at paragraph 14 has held that, "The dying declaration is only a piece of untested evidence and must like any other evidence, satisfy the Court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon". In the present matter we find that it is difficult to reconcile both the dying declarations at Exh.30 and Exh.22 and we are not satisfied that the dying declarations at Exh.30 and Exh.22 are the unalloyed truth of the manner in which the incident had occurred. In such circumstances, therefore, according to us the appellants would be entitled to be given the benefit of doubt.

16. Accordingly, this Criminal Appeal is allowed and the conviction of the appellants is hereby quashed and set aside and they are acquitted of the offence with which they were charged and convicted. Fine, if paid by the appellants be refunded to them. Since appellants 1 and 2 are in jail, they be released forthwith, if not wanted in any other case. Bail bonds of appellant No.3 Sunandabai @ Sunita w/o. Rajendra Koli stand cancelled.

Appeal allowed.