Criminal Appeal No.534 of 2009

10th July, 2013

Petitioner Counsel: Shri R.M. DAGA
Respondent Counsel: Shri S.M. GHODESWAR

Cases Cited:
Kamalbai Gorakh Koli and others Vs. State of Maharashtra, 2011 ALL MR (Cri) 1406 [Para 6,13]
State of Punjab Vs. Parveen Kumar, AIR 2005 SC 1277 [Para 12]
Surinder Kumar Vs. State of Haryana, 2012 ALL MR (Cri) 696 (S.C.) [Para 15]

JUDGMENT

B.R. GAVAI, J. :- The appellant takes exception to the judgment and order dated 10/11/2009 passed by the learned Ad hoc Additional Sessions Judge-4, Nagpur in Sessions Trial No. 266/2009, thereby convicting the appellant/accused for the offences punishable under Sections 302 and 498-A of Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and for three months respectively.

2. The prosecution case, in brief, is that deceased Arti was in love with accused and as such, they married each other in the year 2001. Out of wedlock, they have begotten two children, namely, Gajal and Sujal. The accused used to ill-treat deceased Arti since he had suspicion regarding her illicit relations with other persons. The accused had suspicion that his younger son Sujal was not born to deceased Arti from him. Earlier to the incident in question, the accused had assaulted deceased Arti with a 'pechcus' on her right hand and caused injury. Accordingly, deceased Arti had also lodged a report to the Police Station.

3. It is the further case of the prosecution that due to ill-treatment to deceased Arti at the hands of the accused, she was residing along with her son Sujal in the house of her maternal uncle Bhojraj. Her elder son Gajal was snatched away by the accused and was kept with his mother. It is the further case of the prosecution that prior to 7-8 days of the incident in question, the accused had come to the house of uncle of deceased Arti and requested her to cohabit with him. He also assured her that he would not ill-treat her on the ground of suspicion on her character and also would not consume liquor. Accordingly, deceased Arti had gone to cohabit with the accused.

4. It is the further case of the prosecution that on 1/3/2009, the accused had abused deceased Arti as a prostitute. On the said day, at around 8.30 p.m. deceased Arti returned from her duty and cooked food. The accused in a drunken condition came at about 11 p.m. and took his younger son Sujal at Indora Zopada and kept him there. After doing that, he came home and started abusing and assaulting deceased Arti. At about 4-4.30 a.m., accused woke deceased Arti, removed blanket and asked her whether she wanted to cohabit with him or not. On this, deceased Arti told him that since he was harassing her, she was not ready to cohabit with him. When deceased Arti was asleep, accused poured kerosene on her person. On getting smell of kerosene, she woke up and saw the accused lightening the matchstick and setting her on fire and fleeing away. Her landlady and tenant came there and extinguished fire and took her to the Hospital.

5. On the basis of information given by deceased Arti, first information report came to be registered. During investigation, Investigation Officer recorded dying declaration of deceased Arti on 2/3/2009 so also her dying declaration was recorded by P.W.10 Trimbak Kamble, Special Judicial Magistrate on the same day. After completion of investigation, charge-sheet came to be filed. After committal of the case to the Court of Sessions, charges were framed for the aforesaid offences. The accused pleaded not guilty and claimed to be tried. On conclusion of the trial, the learned trial Judge passed the judgment and order of conviction as aforesaid. Being aggrieved thereby, the appellant has preferred the present appeal.

6. Shri Daga, learned Counsel for the appellant, submits that the judgment and order passed by the learned trial Judge convicting the accused is not sustainable in law. It is submitted that there are inconsistencies in the two dying declarations recorded by P.W.3 Sham, Investigating Officer, which is at Exh. 13 and P.W.10 Trimbak Kamble, Special Judicial Magistrate, which is at Exh. 32. It is contended that versions given in both the dying declarations are totally different. The learned Counsel relying on the judgment of the Division Bench of this Court in the Kamalbai Gorakh Koli and others vs. State of Maharashtra (2011 ALL MR (Cri) 1406), submits that if two dying declarations are quite different and not consistent with each other and acceptance of one dying declaration falsifies the other, both the dying declarations will have to be rejected.

7. Learned Counsel Shri Daga further submits that insofar as both the dying declarations are concerned, there is no endorsement by the Medical Officer either prior to or after recording of the dying declaration regarding mental and physical soundness of the patient to make dying declaration. It is further submitted that P.W.12 Kavita Lokhande has specifically stated that deceased Arti did not talk with her. The learned Counsel further submits that though P.W.13 Kavita Karwade has stated in examination-in-chief that deceased Arti had told her that her husband had set her on fire, in the cross-examination she has categorically admitted that Arti did not disclose anything and that she was not in a position to talk. The learned Counsel, therefore, submits that that leaves the prosecution only with two dying declarations given to P.W.4 Sumitra, mother of deceased Arti and P.W.7 Bhojraj, maternal uncle of deceased Arti. It is submitted that both these witnesses are interested witnesses and as such, only upon dying declaration allegedly given to these witnesses, the order of conviction cannot be sustained.

8. On the other hand, Shri Ghodeswar, learned Additional Public Prosecutor for the respondent, submits that the learned trial Judge has rightly passed the order of conviction. It is contended that both the dying declarations at Exhs. 13 and 32 are consistent insofar as material aspect of accused pouring kerosene on the person of deceased Arti and setting her on fire by matchstick is concerned. It is submitted that dying declarations are corroborated materially by the oral dying declarations given to P.W.4 Sumitra and P.W.7 Bhojraj. It is further submitted that on reading the evidence of P.W.10 Trimbak along with evidence of P.W.14 Dr. Pranab, it would be clear that prior to and after recording of dying declaration of deceased Arti by P.W.10 Trimbak, deceased Arti was examined by P.W.14 Dr. Pranab and he found her to be in mentally and physically sound state to give dying declaration. The learned Additional Public Prosecutor, therefore, submits that the criminal appeal deserves to be dismissed being without any merit.

9. With the assistance of the learned Counsel for the appellant and the learned Additional Public Prosecutor for the respondent, we have scrutinized the evidence and material available on record. The prosecution case rests mainly on the dying declaration recorded by P.W.3 Sham, Investigating Officer, which is at Exh. 13 and the dying declaration recorded by P.W.10 Trimbak, Special Judicial Magistrate, which is at Exh. 32 and the oral dying declarations allegedly given to P.W.4 Sumitra, P.W.7 Bhojraj and P.W.13 Kavita Karwade.

10. Insofar as Exh.13 is concerned, the narration given by deceased Arti is as under :

"At about 4.00 to 4.30 o'clock in the morning, I slept. At that time, he woke me up and took out the blanket on my person and said to me "Do you want to cohabit with me or not ?" On it, I said to him, "You give abuses to me, beat and harass me. Hence, I do not want to cohabit with you." Saying so, I slept. Then smell of pouring kerosene on my person came to me. Thereupon I got up. He ignited the matchstick and threw it on my person. As a result, flames flared up. I went running and jumped in the water tank. He ran away through the door. Since I raised shouts by saying 'save me', the house owner, tenants and two women whose names are not known to me and who resides in our neighbourhood extinguished me and they together brought me at the hospital."

It can thus clearly be seen that she has stated that she had slept and she woke up after she smelt of kerosene, which was poured on her person. She stated that thereafter accused ignited matchstick and threw it on her person, as a result of which flame flared up.

11. As against the aforesaid dying declaration, in the dying declaration, which is recorded by Special Judicial Magistrate at Exh. 32, deceased Arti has stated thus :

"Yesterday night Rajesh left my son at the house of my mother-in-law and Jethani (wife of one's elder brother-in-law). He quarreled with me for the whole night. He was saying to me that he would kill me. I went to sleep in the night. At that time, in the morning, when I was sleeping Rajesh took the kerosene in the stove, made aside the blanket which was on my person, poured kerosene on my person from the stove, touched the burning matchstick to my person, set me ablaze and ran away out of the house. When I was engulfed in flames, I raised shouts. I myself went running jumped in the water cistern and extinguished myself. Thereafter persons came running thereat."

It can thus be seen that different version was given by her, i.e. when she was sleeping, accused Rajesh took kerosene in the stove, made aside the blanket, which was on her person, poured kerosene on her person from the stove, touched the burning matchstick to her person and set her ablaze and ran away. It can also clearly be seen that she has stated in the first dying declaration that she woke up because of smell of kerosene poured on her person, whereas in the second dying declaration she has stated that the accused took kerosene from stove, removed the blanket, which was on her person and thereafter poured kerosene on her person from stove. As per version given by her in the first dying declaration, she woke up due to smell of kerosene, which was poured on her person. As such, as per the said version, kerosene was already poured on her before she woke up. However, in the second dying declaration, she has given a version that after she woke up, kerosene was taken out from the stove, blanket was removed and thereafter kerosene was poured on her person.

12. In the case of State of Punjab v. Parveen Kumar (AIR 2005 SC 1277), the Apex Court had an occasion to consider the issue whether two contradictory dying declarations can be relied on by the prosecution. The Apex Court observed in para (10) of the said judgment, which reads thus :

"10) While appreciating the credibility of the evidence produced before the Court, the Court must view evidence as a whole and come to a conclusion as to its genuineness and truthfulness. The mere fact that two different versions are given but one name is common in both of them cannot be a ground for convicting the named person. The Court must be satisfied that the dying declaration is truthful. If there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declaration. It may be that if there was any other reliable evidence on record, this Court could have considered such corroborative evidence to test the truthfulness of the dying declarations. The two dying declarations, however, in the instant case stand by themselves and there is no other reliable evidence on record by reference to which their truthfulness can be tested. It is well settled that one piece of unreliable evidence cannot be used to corroborate another piece of unreliable evidence. The High Court while considering the evidence on record has rightly applied the principles laid down by this Court in Thurukanni Pompiah and another vs. State of Mysore (AIR 1965 SC 939) and Khusal Rao vs. State of Bombay (1958 SCR 552).

The Apex Court has clearly held that the mere fact that two different versions are given, but one name is common in both of them cannot be a ground for convicting the named person. The Apex Court has further held that if there are two dying declarations giving two different versions, a serious doubt is created about truthfulness of the dying declaration.

13. In the case of Kamalbai Gorakh Koli and others (cited supra), the Division Bench of this Court while considering the aforesaid judgment of the Apex Court has observed in para (10) of the judgment, which reads thus :

"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 ascribe 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."

The Division Bench of this Court has held that accepting one dying declaration necessarily renders the other as false and in such circumstances, it will be wholly impermissible for the Court to pick and choose any one dying declaration to suit the prosecution case. It has further been held that in cases resting on multiple dying declarations, the Courts expect consistency in respect of the crux of the facts leading to the incident.

14. In the present case, as already discussed hereinabove, there are material inconsistencies in the two dying declarations as to what has happened. The aforesaid dying declarations also become suspicious due to another reason. From perusal of both the dying declarations, it is revealed that there is no endorsement either at the beginning or at the end of both the dying declarations to the effect that the patient was examined by the Medical Officer and the Medical Officer found the patient to be physically and mentally sound to give the dying declarations.

15. It will be relevant to reproduce the observations of the Apex Court in para (12) of the judgment in the case of Surinder Kumar vs. State of Haryana (2012 ALL MR (Cri) 696 (S.C.), which read thus:

"12. As per the prosecution, the incident took place at 2 a.m. on 26.6.1991 and as per her statement, the occurrence of burning was in the evening of 25.6.1991, that is, the previous day. The dying declaration did not carry a certificate by the Executive Magistrate to the effect that it was a voluntary statement made by the deceased and that he had read over the statement to her. The dying declaration was not even attested by the doctor. As stated earlier, though the Magistrate had stated that the statement had been made in mixed dialect of Hindi and Punjabi and the statement was recorded only in Hindi. Another important aspect is that there was evidence that Kamlesh Rani was under the influence of Fortwin and Pethidine injections and was not supposed to be having normal alertness. In our view, the trial Court rightly rejected the dying declaration altogether shrouded by suspicious circumstances and contrary to the story of prosecution and acquitted the appellant."

In the said case also, the Apex Court found that since dying declaration did not carry attestation by the Doctor, the said dying declaration was not free from suspicious circumstances.

16. In the present case, it will be relevant to refer to the evidence of P.W.14 Dr. Pranab Sadawarte. Though the said Doctor in the examination-in-chief states that on 2/3/2009 he had received a letter from Special Judicial Magistrate requesting him to give certificate about condition of patient, which is at Exh.31 and it bears his certificate and signature about condition of patient, perusal of Exh. 31 reveals that it is only a letter addressed by the Special Judicial Magistrate to the House Officer, Ward No.3, Mayo Hospital, Nagpur. It is to be noted that this witness has categorically admitted in cross-examination that he had not given any certificate on Exh. 13 that the patient was fit for giving statement. He has stated that on the requisition of the Special Judicial Magistrate, he had examined the patient and had given a certificate. However, no such certificate is placed on record by the prosecution. He has further stated that he had not given certificate on the dying declaration. Apart from that, there is a further admission by the Doctor to the following effect :

"I have not given certificate about the fitness of patient. Dying declaration does not bear my signature. I did not feel it necessary to sign on dying declaration, so I have not made signature."

In view of the clear-cut admission given by the Medical Officer himself, it creates a serious doubt as to whether deceased Arti was, in fact, examined by the Medical Officer prior to and after giving of dying declarations. The suspicion becomes more strong in view of the evidence of P.W.12 Kavita Lokhande and P.W.13 Kavita Karwade. P.W. 12 Kavita Lokhande categorically states in her examination-in-chief that while deceased Arti was being taken to the Hospital, she did not talk. Though P.W.13 Kavita Karwade states in her examination-in-chief that deceased Arti told her that her husband set her on fire, in cross-examination she clearly admits that deceased Arti did not disclose anything and that Arti was not in a position to talk.

17. That leaves us only to the alleged oral dying declarations given to P.W.4 Sumitra and P.W.7 Bhojraj. It is to be noted that both these witnesses are closely related to deceased Arti, i.e. they are mother and maternal uncle of Arti. It is further to be noted that though the incident is alleged to have taken place in the wee hours of 2/3/2009, the statements of the witnesses have been recorded only on 5/3/2009. It can thus be seen that possibility of false implication by the relatives of deceased Arti cannot be ruled out.

18. In the totality of the circumstances, it can be said that prosecution has failed to prove the case beyond reasonable doubt. We, therefore, find that the impugned judgment and order of conviction is not sustainable.

19. In the result, the criminal appeal is allowed. The impugned judgment and order dated 10/11/2009 passed by the Ad hoc Additional Sessions Judge-4, Nagpur in Sessions Trial No.266/2009 is set aside. The appellant is directed to be set at liberty forthwith, if not required in any other case.

Appeal allowed.