2014 ALL MR (Cri) 3440
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
P.N. DESHMUKH, J.
Latabai Dinkar Sonawane Vs. The State of Maharashtra
Criminal Appeal No. 444 of 2012
20th March, 2014
Petitioner Counsel: Mr. VIJAY SHARMA
Respondent Counsel: Mr. G.R. INGOLE
Evidence Act (1872), S.32 - Dying declaration - Credibility - Dying declaration recorded by scribe on dictation of ASI - Only ASI was examined and not the scribe - No explanation given for non-examination of scribe - Presence of doctor at the time of recording statement of deceased, doubtful - No explanation for existence of overwriting about time and date mentioned on dying declaration - Nothing on record to establish that deceased was mentally and physically in fit state of condition - In view of fact that before recording of dying declaration victim was administered with various injections, dying declaration not appearing to be free from infirmities - It needs to be kept out of consideration. (Paras 11, 13, 14)
JUDGMENT :- This appeal takes exception to the judgment and order dated 14-6-2012, passed by the learned Additional Sessions Judge, Jalgaon, in Sessions Case No. 203 of 2008, whereby the appellant, Latabai Dinkar Sonawane, came to be convicted for the offence punishable under Section 304 Part-II of the Indian Penal Code, and was sentenced to suffer rigorous imprisonment for five years, and to pay a fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment for six months.
2. The appellant, being mother-in-law of deceased Suvarna, was charged for the offences punishable under Sections 302, 498A, read with Section 34, of the Indian Penal Code, along with the co-accused, being father-in-law, brother-in-law, husband and sister-in-law, respectively, of deceased Suvarna. The learned trial Judge acquitted all the co-accused of the offences punishable under Sections 302, 498A, read with Section 34 of the IPC, and had convicted the appellant for the offence punishable under Section 304 Part-II of the IPC, as aforestated.
3. State has not preferred any appeal against the acquittal of the appellant, for the offence punishable under Section 498A of the IPC, nor against the acquittal of co-accused of the offences punishable under Sections 302, 498A, read with Section 34 of the IPC.
Deceased Suvarna was wife of Sanjay s/o. Dinkar Sonawane, and their marriage was solemnized about 3 years prior to the incident. In their marriage, father of deceased Survana had given Rs. 30,000/- as a dowry, and in addition to it, some gold ornaments; however, while deceased was cohabiting with her husband at his village, along with other family members, she was subjected to illtreatment for dowry claiming further amount to the extent of Rs. 1,00,000/-.
In the background of above facts, it is the case of the prosecution that, on 5-8-2008, Suvarna was subjected to beating by her husband and in-laws, and thereafter she went in field to work. She returned back at around 3.00 p.m., when appellant asked her to prepare tea for her. According to the prosecution, while deceased was preparing tea on the coal stove, appellant came from behind and gave her push, due to which, she fell down on the coal stove and sustained serious burn injuries.
After Suvarna sustained burn injuries as above, she was referred to Municipal Hospital at Bhusawal, wherefrom she was referred to Civil Hospital at Jalgaon. In this hospital, her statement came to be recorded by the Police vide Exhibit 40, and on the basis of said statement, offence came to be registered vide Crime No. 64/2008 for the offences punishable under Sections 307, 498A, read with Section 34 of the IPC.
During the course of investigation, spot Panchanama was drawn and on 8-8-2008, Suvarna died while undergoing medical treatment. Accordingly, offence punishable under Section 302 of the IPC came to be added in the present crime. The autopsy was performed by Dr. Shivdas Chavan (PW 2), and it is opined that the cause of death was due to 81 % deep burns sustained by Suvarna.
On recording statements of witnesses, investigation came to be concluded and the charge sheet came to be filed in the court of Judicial Magistrate (First Class), Bhusawal. In the course of time, the case came to be committed for trial before the Court of Sessions at Jalgaon. The charge was framed against the accused, for the offences punishable under Sections 302, 498A, read with Section 34 of the IPC, to which, they pleaded not guilty and claimed to be tried.
The defence of the appellant is that of total denial. According to the appellant, deceased Suvarna died of accidental death.
7. During the pendency of present appeal, appellant has filed an application, vide Criminal Application No. 3283 of 2013, under the provisions of Section 391 of the Code of Criminal Procedure, 1973, with a prayer to place on record, additional evidence pertaining to Station Diary entry at serial No.28 of Bhusawal Police Station, dated 5-8-2008; and the MLC papers in respect of Municipal Hospital, Bhusawal, dated 5-8-2008. The copies of above documents were placed on record along with the said Application. The documents were duly verified by the prosecution, and the prosecution replied to this Application and has placed on record, affidavit in reply admitting genuineness of the said documents. Accordingly, the MLC papers of Municipal Council Hospital, Bhusawal, are marked as "A" collectively; the Station Diary entry of Bhusawal Taluka Police Station, dated 5-8-2008, is marked as "B" collectively. The documents are accordingly duly considered while considering the present appeal.
8. Having considered the fact of appellant alone being convicted, as afore stated, and since there is no appeal preferred by the State against acquittal of the appellant of the offence punishable under Section 498A of the IPC, and even on considering that, no appeal is preferred by the State, against the acquittal of co-accused, being husband, father-in-law, brother-inlaw and sister-in-law of deceased Suvarna, of the offences punishable under Sections 302, 498A, read with Section 34 of the IPC, the only point which I find necessary to consider is, whether the offence punishable under Section 304 Part-II of the IPC has been made out by the prosecution, under which, the appellant came to be convicted.
9. In the background of above facts, I have duly considered the evidence involved in this appeal, according to which, the incident occurred on 5-8-2008, at around 3.30 p.m., at village Fekari (Taluka : Bhusawal, District : Jalgaon), which according to the evidence of Rajendra Tayade (PW 1), father of the deceased, is situated around 22 Kms. from Jalgaon.
It is further material to note that, after the incident, as per document Exhibit "A" collectively, which are MLC case papers of Municipal Council Hospital, Bhusawal, Suvarna was admitted on 5-8-2008 at 5.00 p.m. and is certified to have sustained 64 % burn injuries. It further reveals that, on admission her general condition is stated to be poor and she is found to be in semi-conscious and drowsy condition; her pulse were certified to be feeble. On considering above medical condition of the patient, the Medical Officer, who has attended Suvarna at said hospital, certified at 5.30 p.m., that she was not in a condition to make her statement.
With reference to above medical endorsement, it appears that the Station Diary entry to this effect, was taken at serial No. 28, at 5.50 p.m., on 5-8-2008, wherein it is specifically stated that when Police arrived in the hospital for recording her statement, she was certified to be not in a position to make any statement and was referred for further treatment to Civil Hospital, Jalgaon. The entry which is taken on the same day at 5.50 p.m., apart from above, reveal that as the injured was referred to Civil Hospital, Jalgaon, officials of Zilla Peth Police Station, Jalgaon, were informed by wireless, to record her statement.
10. From the above evidence on record, it reveals that, after the incident on 5-8-2008, which had occurred at 3.30 p.m., till 5.30 p.m., the patient was not in a position to make any statement, and in the same condition, she was referred for better treatment to Civil Hospital at Jalgaon.
In the background of above facts, evidence of A.S.I., Raghunath Naik (PW 5), would be material to be considered, who has stated that, on 5-8-2008, while he was on duty at Zilla Peth Police Station, Jalgaon, information was received at 6.00 p.m., from Chief Medical Officer, Civil Hospital, Jalgaon, about admission of Suvarna in burnt condition, and accordingly, he was directed to record her statement. Said witness accordingly contacted Dr. Rajesh Jain (PW 4), to ascertain whether the injured was in a position to make statement, and on Doctor replying in affirmative, he recorded her statement as per Exhibit 40.
A.S.I. Naik (PW 5) had deposed that, Suvarna stated to him that, she was married three years prior to the incident, and was staying in her matrimonial house with her husband, parents-in-law, brother-in-law and sister-in-law. She further stated that, cash of Rs. 30,000/- and 5 gram gold ring was given in her marriage and she was being harassed on account of demand of Rs. 1,00,000/-.
He has further deposed that, Suvarna had stated that on 5-8-2008, she was abused on account of demand by her husband and the appellant. He further stated that, after she returned back from the field at 3.00 p.m., the appellant asked her to prepare tea. While Suvarna was preparing tea on coal stove, appellant being the mother-in-law suddenly pushed her from behind, due to which, her saree caught fire and she sustained burns. A.S.I. Naik (PW 5) has further stated that, he has read over the statement to Suvarna and thereafter obtained her thumb impression and also signed upon it.
11. Though oral evidence of A.S.I. Naik (PW 5) corroborates with the contents of Exhibit 40, as stated above, it is material to note that in the cross examination, he has admitted that Exhibit 40 is recorded by a Writer Constable according to his dictation. Admittedly, prosecution has not examined said scribe of the statement Exhibit 40.
12. In the light of above admission and the material fact as above, I find it useful to refer to the decision of the Hon'ble Apex Court, in the case of Govind Narain and another Vs. State of Rajasthan (AIR 1993 SC 2457). In the said case, Hon'ble Apex Court, in a murder case, while considering the dying declaration, and its credibility, observed that, the dying declaration which is written document and when its scribe is not examined, same is not to be acted upon and is liable to be discarded, in view of the fact that there is no examination of scribe and, as such, there is no cross examination on this material aspect.
13. In the case in hand also, as stated above, prosecution has not examined scribe of Exhibit 40 nor had put forth any cause for nonexamination of scribe. In view of the facts involved in the appeal, and the law relied upon, the dying declaration do not inspire confidence to be acted upon. In the circumstances, Exhibit 40 needs to be discarded.
Similarly, Exhibit 40 further creates doubt in the case of prosecution, as on considering the evidence of Dr. Rajesh Jain (PW 4), he has stated that, on the request of Police, who had approached him for recording statement of Suvarna, he examined her and made endorsement as per Exhibit 37, certifying that the patient was in a position to make statement and thereafter her statement was recorded. However, his evidence is totally silent about his presence when the statement Exhibit 40 came to be recorded, nor his evidence is on record, that after the dying declaration was concluded, he examined the patient and certified her to be conscious mentally and physically while recording her statement.
Even otherwise, when the dying declaration Exhibit 40 is perused, it reveals that there is only one endorsement made upon it, as "can give statement", and there is overwriting about time and also on the date '5-8-2008'. No explanation is put forth by the prosecution about such overwriting on this material document. In any case, even on considering above endorsement of the Medical Officer, it reveals that there is nothing on record to establish that during recording of Exhibit 40, Suvarna was mentally and physically in a fit state of condition.
14. It is also pertinent to note that, according to Dr. Rajesh Jain (PW 4), Survarna had sustained 80 % burn injuries, and according to the post mortem report Exhibit 33, prepared by Dr. Shivdas Chavan (PW 2), Suvarna died due to 'cardio-respiratory arrest due to shock due to 81 % deep burn'. Having considered the percentage of burns sustained by Suvarna, and considering the fact that before her dying declaration, Exhibit 40, came to be recorded, she was initially provided treatment in the Municipal Council Hospital at Bhusawal, she must have been administered pain killers injections. Part of Exhibit "A" collectively reveals said aspect that while in hospital, she was administered with various injections. in that view of the matter, the dying declaration Exhibit 40 relied upon by the prosecution in favour of its case, does not appear to be convincing on this count and thus, cannot be acted upon.
Law relating dying declaration is well settled by the Hon'ble Apex Court, way back, in the case of Khushal Rao Vs. State of Bombay (AIR 1958 SC 22 : [2008 ALL SCR (O.C.C.) 41]), observing thus :
" In order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, but from the fact that the Court, in a given case, has come to the conclusion that, that particular dying declaration was not free from the infirmities."
In view of the legal principle as above, the dying declaration involved in this appeal, for the reasons stated above, does not appear to be free from the infirmities and as such, needs to be kept out of consideration.
15. Evidence of Rajendra Tayade (PW 1), father of deceased Suvarna, and Mamta Khawale (PW 6), sister of deceased Suvarna, though reveals about oral dying declaration alleged to have been made to them, by deceased Suvarna, while they visited her in the Civil Hospital at Jalgaon, their evidence does not inspire confidence as both these witnesses materially contradict with each other. Rajendra (PW 1) has stated that Suvarna informed that her husband Sanjay as well as the appellant pushed her on the coal stove, while Mamta (PW 6) does not corroborate with reference to Sanjay pushing Suvarna on the coal stove. In that view of the matter, said piece of evidence which is material to be considered, for decision of the present appeal, also does not inspire confidence, when oral dying declaration is even otherwise a weak piece of evidence.
16. On considering the evidence as discussed above, and the legal principles, the prosecution is, therefore, not found to have established its case even for the offence punishable under Section 304 Part-II of the IPC.
The conviction and sentence imposed upon the appellant, by the learned trial court, for the offence punishable under Section 304 Part-II of the Indian Penal Code, sentencing her to undergo rigorous imprisonment for five years, and to pay a fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment for six months, is quashed and set aside.
The appellant, Latabai Dinkar Sonawane, shall be released forthwith, if she is not required in any other case.
Fine amount, if paid, be refunded to the appellant.