2014 ALL MR (Cri) 1567
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

P.V. HARDAS AND A.S. GADKARI, JJ.

Akaram Malappa Aaivale Vs. The State Of Maharashtra

Criminal Appeal No. 634 of 2007

16th April, 2014

Petitioner Counsel: Mr. ARFAN SAIT
Respondent Counsel: Dr. F.R. SHAIKH

(A) Evidence Act (1872), S.32 - Dying declaration - Reliability - Dying declaration recorded by Nayab Tahasildar in handwriting of another person - It does not contain any endorsement about reading over of dying declaration to deceased - Nor scribe of dying declaration has been examined - Dying declaration on account of such infirmities is not reliable. (Para 4)

(B) Penal Code (1860), S.300 - Evidence Act (1872), S.32 - Murder - Dying declaration - Prosecution case that accused poured kerosene from a kerosene container and had set deceased ablaze - There is total absence of any averment in medical case papers about accused setting deceased ablaze - Dying declaration recorded by Head Constable after time gap of 30 minutes stating that deceased was set ablaze by accused as he was suspecting her character/chastity - Is suspicious and not reliable - Possibility of deceased being tutored cannot be ruled out as she was accompanied by her mother - Accused cannot be convicted on basis of dying declaration alone - Further, deceased was mentally disturbed on account of demise of son-in-law - Possibility of deceased committing suicide cannot be ruled out - Conviction and sentence of accused thus set aside. (Paras 6, 8)

JUDGMENT

P. V. HARDAS, J. :- Appellant, who stands convicted for offence punishable under Sections 302, 504 and 506 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs.5000/-, in default of which to undergo RI for one year, RI for one year and to pay a fine of Rs.500/- in default of which to undergo RI for three months and RI for one year and to pay a fine of Rs.500/- in default of which to undergo RI for three months, by the Additional Sessions Judge, Kolhapur, by judgment dated 25/04/2007, in Sessions Case No. 135 of 2006, by this appeal questions the correctness of his conviction and sentence .

2. Briefly stated the facts, as are necessary for the decision of this appeal, may be stated thus:-

PW 18 - Head Constable Dinkar Kawale, who was attached to the Shahapuri Police Station and was on duty on 20/4/2006, was directed to record the statement of injured Vijaymala in the CPR Hospital, Kolhapur. Accordingly, he went to the CPR Hospital at 5.15 p.m. and contacted PW 14 - Dr. Manjusha Nakate and requested her to ascertain if injured Vijaymala was in a fit condition to give her statement. PW 14 - Dr. Nakate examined Vijaymala and opined that Vijaymala was in a fit condition to give her statement. PW 14 - Dr. Nakate accordingly endorsed on the top of a page about fitness of Vijaymala to give her statement. PW 18 - Head Constable Kawale then recorded the statement of injured Vijaymala. He read over the statement to Vijaymala and obtained her thumb impression. The said statement of Vijaymala is at Exh. 28. Vijaymala was then examined by PW 14 - Dr. Nakate again, who opined that Vijaymala was conscious while giving her statement. On the basis of the said statement of Vijaymala at Exh. 28, PW 19 - PSI Balaji Desai registered an offence vide Crime No. 75 of 2006 under Sections 307, 323, 504 and 506 of the IPC. The investigation was carried out by PW 19 - PSI Desai.

PW 19 - PSI Desai proceeded to the CPR Hospital at about 7 p.m. and thereafter went to the Tahsildar's office to inquire whether Executive Magistrate was available there. Since the Executive Magistrate was not available, he proceeded to the scene of the incident and drew the scene of the incident panchanama in the presence of panch witnesses at Exh. 43. From the scene of the incident, he seized a match-stick, a plastic can containing kerosene and burnt pieces of saree and blouse. Statements of four witnesses were recorded. On 21/4/2006 PW 19 - PSI Desai again went to the scene of the incident and recoded the statements of six witnesses. On that day, at about 11.30 a.m., he met the Nayab Tahsildar and requested him to record the statement of injured lady. On that day statements of witnesses were recorded. The appellant was found in the locality and was brought to the police station and was arrested at 7.50 p.m. under arrest panchanama at Exh. 50. Since the appellant had injuries, he was referred for medical examination. During custodial interrogation, the appellant expressed his willingness to point out the place where his clothes had been concealed. Accordingly, a memorandum was drawn and the accused led the police and the panchas and handed over his clothes, which were then seized. On 23/4/2006, injured Vijaymala succumbed to her burn injuries and therefore, Section 302 of the IPC was added. An inquest panchanama was accordingly drawn in the presence of panchas at Exh. 51. Further to the completion of investigation, a charge-sheet against the accused was submitted.

The appellant was examined by PW 17 - Dr. Shashikant Dhumale, who noticed the following external injuries :-

(1) 7 cm. round ulcer with 4 cm. x 2 cm. erosion above wrist (lt) hand with multiple scalds, vesicles and bullae on dorsum of fingers each.

(2) Erosion and super fisal ulcer on Rt. hand from thumb to mid ulnar border on palm with erosion 2 cm. x 2 cm. transversely on flexor - mind forearm and few bullae on dorsum of Rt. hand.

He opined that the injured had sustained 10% burns which had caused within 48 hours prior to the examination. The injury certificate of the accused is at Exh. 40.

PW 15 - Nayab Tahsildar Ranjeet Desai had received a requisition at Exh. 33 for recording the dying declaration of injured Vijaymala. He accordingly proceeded to the Burn Ward in the CPR Hospital at Kolhapur at about 11.15 a.m. He requested PW 16 - Dr. Mukesh Dhande to ascertain if Vijaymala was in a fit condition to give her statement. The relatives, who were present near the injured lady, were asked to go out of the Ward. PW 16 - Dr. Dhande reached the Ward at 11.35 a.m. and after examining Vijaymala, opined that she was in a fit condition to give her statement. PW 15 - Ranjeet Desai accordingly recorded the statement of Vijaymala at Exh. 34. He obtained the thumb impression of Vijaymala on Exh. 34. Since the Medical Officer was not present throughout the recording of the dying declaration at Exh. 34, his endorsement at the conclusion of the dying declaration was obtained at 8.10 p.m.

Postmortem on the dead body of deceased Vijaymala was performed at the CPR General Hospital, Kolhapur by the Medical Officer. As per the postmortem report at Exh. 53, Vijaymala had sustained 85% superficial to deep burns. The Medical Officer opined that deceased Vijaymala had died due to shock due to burns.

3. On committal of the case to Court of Sessions, trial court vide Exh. 2 framed charge against appellant for offence punishable under Sections 302, 504 and 506 of IPC. The appellant denied his guilt and claimed to be tried. Prosecution, in support of its case, examined 19 witnesses. The defence of the appellant was of denial. The trial court upon appreciation of the evidence of the prosecution, convicted and sentenced the appellant as afore-stated. PW 1 to PW 13 did not support the prosecution and were declared hostile. PW 8 - Pinky Kamble, daughter of the appellant and PW 13 - Jaibai Kengar, mother of deceased Vijaymala also did not support the prosecution and were declared hostile. The entire conviction of the appellant, therefore, rests on the two dying declarations at Exh. 28 and Exh. 34.

4. Exh. 34 was recorded by PW 15 - Ranjeet Desai. In cross-examination, PW 15 - Ranjeet Desai has admitted that the dying declaration at Exh. 34 was not in his own handwriting and was in the handwriting of one Bajaran Madhale, a candidate appointed on ad-hoc basis. He has also admitted that Exh. 34 does not contain the name of PW 15 - Ranjeet Desai. PW 15 - Ranjeet Desai also does not depose that the dying declaration was read over to Vijaymala and Vijaymala had admitted the contents to have been correctly recorded. The dying declaration at Exh. 34 also does not contain any endorsement about reading over of the dying declaration to Vijaymala. In the light of the aforesaid infirmities, according to us, no reliance at all can be placed on the dying declaration at Exh. 34. The dying declaration at Exh. 34 was neither read over to Vijaymala nor is the dying declaration at Exh. 34 scribed by PW 15 - Ranjeet Desai and, in fact, the scribe of the dying declaration has not been examined. There is another suspicious circumstance and that is that during the recording of the dying declaration at Exh. 34, PW 16 - Dr. Dhande had left for attending an emergency and it is only at 8.10 p.m. that he had endorsed on the dying declaration at Exh. 34 that Vijaymala was conscious, oriented and was in a fit condition to give her statement. For the aforesaid reasons, therefore, according to us, no reliance at all can be placed on the dying declaration at Exh. 34.

5. The medical case papers have been produced on record by PW 16 - Dr. Dhande at Exh. 36. Perusal of the medical case papers at Exh. 36 reveals that Vijaymala had been admitted in the hospital by her mother and by PW 11 - Vijay. Vijaymala had sustained burns at 4.45 p.m. The endorsement at 5.15 p.m. indicates that history of burns at 4.45 p.m. was alone informed to the Medical Officer. Subsequently, the history was recorded, which we reproduced below:-

"H/o burns 1 hour back by stove (kerosene). No proper history given by relatives. History of throwing kerosene and burning by husband".

In the history referred to above, the sentence beginning, "No proper history given by relatives" has been scored out. Similarly, part of the sentence beginning from "and burning by husband" has also been scored out. Thus, when two opportunities were available to Vijaymala, Vijaymala had not disclosed that she had been set ablaze by her husband. The first dying declaration at Exh. 28 was recorded by PW 18 - Head Constable Kawale at 5.30 p.m.

6. In the dying declaration at Exh. 28, Vijaymala had stated that she had been set ablaze by the appellant as the appellant was suspecting her character / chastity. According to Vijaymala, the appellant had poured kerosene from a kerosene container and thereafter had lit a match-stick and set her ablaze. In the history narrated and which is found in the medical case papers at Exh. 36, there is a total absence of any averment about the appellant setting Vijaymala ablaze. All that is stated is that Vijaymala had sustained burns at 4.45 p.m. or one our hour prior to her admission in the hospital. Vijaymala had an opportunity of informing the Medical Officer that the appellant had set her ablaze. In fact, the statement that she was set ablaze by the appellant had been scored out in the medical case papers. The prosecution has made no attempts at explaining the reason for scoring out the said part of the sentence. It would thus be seen that if Vijaymala was really conscious and as per the medical evidence she indeed was conscious, Vijaymala would have disclosed to the Medical Officer that it was the appellant who had set her ablaze. In fact, Vijaymala makes a reference to the kerosene from the stove and does not refer to kerosene being poured by the appellant from a kerosene container. There is a total absence of the statement that the appellant had poured kerosene and had set Vijaymala ablaze. The disclosure made to the Medical Officer, which is the first dying declaration of Vijaymala runs counter to the dying declaration at Exh. 28. Importantly, we find that there is a time gap of 30 minutes from the dying declaration reflected in the medical case papers at Exh. 36 and the dying declaration recorded by PW 18 - Head Constable Kawale at Exh. 28. Vijaymala was accompanied by her mother PW 13 - Jaibai and possibility of Vijaymala being tutored cannot be ruled out. Additionally, we find that Vijaymala had sustained 85% deep to superficial burns. The medical treatment had been started just before the recording of the dying declaration at Exh. 28. The aforesaid circumstances, in our opinion, create suspicion about the truthfulness of the contents of the dying declaration at Exh. 28. The cloud of suspicion which hovers over the recitals of the dying declaration at Exh. 28 has not been dispelled by the prosecution. In fact, no effort was made by the prosecution at explaining the recording of the history/dying declaration reflected in the medical case papers at Exh. 36. In our opinion, therefore, the conviction of the appellant cannot be sustained on the basis of the dying declaration at Exh. 28 alone. As pointed out by us above, all other witnesses, including the daughter of the appellant and mother of deceased Vijaymala, did not support the prosecution and were declared hostile. PW 13 - Jaibai, mother of deceased Vijaymala, deposes that on account of the demise of the husband of Pinky i.e. son-in- law of deceased Vijaymala, Vijaymala was mentally disturbed. In such situation, therefore, according to us the possibility of deceased Vijaymala committing suicide on account of trivial quarrel between the appellant and Vijaymala cannot be ruled out. PW 17 - Dr. Dhumale has admitted that the injuries sustained by the appellant were possible in the attempt at dousing the flames. The possibility of Vijaymala committing suicide is certainly rendered probable in the light of the dying declaration as recorded in the medical case papers at Exh. 36.

7. Vijaymala was aged about 40 years and had three daughters and a son. Her two daughters had been married and her daughter PW 8 - Pinky had recently lost her husband. It would obviously indicate that Vijaymala and appellant had been married for more than 22 years. In the dying declaration at Exh. 28, there is no reference to the appellant suspecting the chastity of Vijaymala prior to the day of the incident. It is unbelievable that the appellant after more than 22 years of the marriage would suddenly suspecting the chastity of his wife on the day of the incident set her ablaze.

8. In the light of what has been held by us above, according to us, the appellant is entitled to be given the benefit of doubt.

9. Accordingly, Criminal Appeal is allowed and the conviction and sentence of the Appellant is hereby quashed and set aside and the appellant is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant, be refunded to him. Since the appellant is in jail, he be released forthwith, if not required in any other case.

Fees payable to Mr. Arfan Sait, learned counsel appointed for the appellant is quantified at Rs.5,000/-.

Appeal allowed.